BROOKS v. CALDERWOOD et als.

BROOKS v. CALDERWOOD et als. No appeal lies from an order, made before final judgment, refusing to transfer a cause from a District Court of this State to the United States Circuit Court for trial, because the defendant is an alien. Hopper t. Kalkman (17 Cal. 517) affirmed. As no appeal lies from such order, the Supreme Court has no jurisdiction, on such appeal, to pass upon the merits of the motion to transfer the cause, even with the consent of the parties. Appeal from the Fourth District. Ejectment for a lot in San Francisco. Defendant Calderwood, upon entering his appearance, moved to transfer the cause to the United States Circuit Court for trial. Upon hearing, the motion was denied, and from the order of denial Calderwood appeals. J. B. Harmon, for Respondent, moved to dismiss the appeal, citing Hopper v. Kalkman (17 Cal. 517). B. S. Brooks, contra. [MAJORITY — Field, C. J.] Field, C. J. Cope, J. concurring.—Ordered Ordered that the appeal be dismissed, on the authority of the case cited by the respondent. Subsequently, appellant applied for a rehearing, contending that by stipulation the case was submitted on its merits. Field, C. J. delivered the opinion of the Court —Cope, J. concurring. As no appeal lies from the order refusing to transfer the cause to the Circuit Court of the United States for trial, this Court has no jurisdiction to pass upon the merits of the application of the defendant, even with the stipulation of the parties. It will be time enough to consider the merits when the case is properly before us. Rehearing denied.