HARRISON, J.-While the respondent held the office of supervisor of the fourth district of the county of Sacramento, an accusation was filed against him in the superior court for that county by D. J. McGowan, under the provisions of section 772 of the Penal Code, charging him with collecting illegal fees and neglecting to perform his official duties. To this accusation the respondent filed a demurrer upon various grounds, which was sustained by the court, and the accuser declining to amend his accusation, the court entered a judgment dismissing the proceeding. From this judgment McGowan has appealed. The respondent has moved to dismiss the appeal upon the ground that an appeal from the action of the court under this section of the Penal Code is unauthorized.

The charge against the respondent is of a public offense a neglect of official duty, or misdemeanor in office and the proceeding against him is a criminal proceeding in the nature of an impeachment. (In re Marks, 45 Cal. 199.) At the common law an officer guilty of neglect of official duty was liable to indictment and punishment by removal from office. (Throop on Public Officers, c. 32; Bacon's Abridgment, tit. Offices and Officers, note. See, also, opinion of Kent, J., in note to People v. Denton, 2 Johns. Cas. 275.) Article IV, section 18, of the constitution of this state, after providing that certain state officers shall be liable to impeachment for misdemeanor in office, declares: "All other civil officers shall be tried for misdemeanor in office in such manner as the legislature may provide." By section 772 of the Penal Code the legislature has provided a manner for the trial of certain misdemeanors in office, by authoriz ing an accusation in writing, verified by the oath of any person, to be presented to the superior court, and, if upon a hearing thereon after a citation to the accused the charges are sustained, the court is authorized to remove the accused from office. These proceedings are intended to be summary, and, as the legislature has made no provision for a review of the action of the

superior court, its judgment is final. (See Appeal of Houghton, 42 Cal. 35; Bixler's Appeal, 59 Cal. 550.)

By article VI, section 4, of the constitution, the supreme court is given appellate jurisdiction "in all criminal cases prosecuted by indictment or information in a court of record on questions of law alone." Section 682 of the Penal Code declares that:

"SEC. 682. Every public offense must be prosecuted by indictment or information, except, 1. Where proceedings are had for the removal of civil officers of the state."

The "information" here authorized is that named in the constitution (art. 1, sec. 8) as the equivalent of an indictment, and which is to be prepared by the district attorney under the provisions of section 809 of the Penal Code. Marks' case, supra, was prosecuted under the provisions of the act of March 14, 1853 (Stats. 1853, p. 40), and by the provisions of section 6 of that act either party might appeal to the supreme court as in other The provisions of this section ceased to exist upon the adoption of the codes, and section 1235 of the Penal Code authorizes an appeal to this court only in such criminal actions as amount to a felony. As the appellate jurisdiction of this court in criminal cases given by the constitution extends only to such as are prosecuted by indictment or information, we have no jurisdiction to entertain the present appeal.

cases.

The appeal is dismissed.

GAROUTTE, J., and VAN FLEET, J., concurred.

[S. F. No. 219. Department One.-September 4, 1895.] JENNIE KOELLING, RESPONDENT, V. GEORGE A. RUTZ, APPELLANT.

APPEAL-FAILURE TO FILE TRANSCRIPT-DISMISSAL DAMAGES FOR DELAY.-Where the respondent, upon a motion to dismiss an appeal for failure of the appellant to file the transcript within the time prescribed by the rules of the court, also asks to be allowed damages upon the ground that the appeal was not taken in good faith, but was taken for the purpose of hindering and delaying the respondent in the collection of the judgment, and files an affidavit in support of the latter part of the motion showing that the appeal was taken and the execution of the judgment stayed for mere delay, and in order to induce the respondent to accept a less sum than the amount of the judgment, which he refused to do, if the statements in the affidavit are not controverted by the appellant, and are corroborated by his failure to file the transcript, he must be considered as admitting them, and the respondent is entitled to damages for delay upon the dismissal of the appeal.

MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco.

The facts are stated in the opinion of the court.

John J. Roche, and Isador Danielwitz, for Appellant.

Otto Tum Suden, for Respondent.

HARRISON, J.-A motion is made to dismiss the appeal for the failure to file the transcript within the time prescribed by the rules of this court, and that the respondent be allowed damages upon the ground that the appeal is not taken in good faith, but for the purpose of hindering and delaying the plaintiff in the collection of the judgment. In support of the latter part of the motion the attorney for the respondent has filed an affidavit stating that, after the rendition of the judg ment, and prior to the service of the notice of appeal, one of the attorneys for the defendant proposed to him that the plaintiff accept a less sum than that for which judgment had been given, and informed him that, unless such less sum was accepted in full payment, an appeal would be taken, and the plaintiff delayed in the collec

tion of the judgment for an indefinite period. To the suggestion that the time for presenting a bill of exceptions or a motion for a new trial had expired, and that the appeal must be upon the judgment-roll alone, which was free from error, the attorney replied that delay was all he wanted, and that the plaintiff had better take a smaller sum at once than the full sum after the disposal of an appeal and its attending labor and trouble; that the plaintiff ought to accept a less sum that the amount of the judgment, and avoid the delays that an appeal would bring, and that, for that reason, the appeal would be taken if a less sum was not accepted. The plaintiff's attorney declined to accept the proposition, and notified the defendant's attorney that, if the appeal were taken and not perfected, he should ask for damages against the appellant for delay. Thereafter the notice of appeal was taken, an undertaking given to stay execution, and the appellant, through his attorneys, renewed his proposition to press the appeal if the less amount were not accepted.

The statements in this affidavit are not controverted by the appellant, and are corroborated by his failure to file any transcript in this court. As they must, therefore, be taken as admissions by him that they are correct, the respondent is entitled to the damages asked. (Duncan v. Grady, 99 Cal. 552.)

The appeal is dismissed, and the respondent is allowed fifty dollars damages as a part of his costs on appeal.

GAROUTTE, J., and VAN FLEET, J., concurred

[No. 18346. Department One.-September 4, 1895.] JOSEPH SPINNEY, APPELLANT, v. H. W. DOWNING ET AL., RESPONDENTS.

CONTRACTS-ASSENT-AGREEMENT FOR WRITING-RECIPROCAL STIPULATIONS SIGNATURE BY ONE PARTY.-When it is a part of the understanding between the parties to a contract that the terms of the contract are to be reduced to writing, and signed by both parties, the assent to its terms must be evidenced by the signature of both parties, or it does not become a binding obligation upon either, especially where the proposed contract contains reciprocal stipulations and covenants upon the part of each party as a consideration for the acts of the other.

ID.-PART PERFORMANCE ESTOPPEL.-The fact that the party not signing the contract proceeds with full knowledge of its terms partially to perform it does not estop him to deny the binding obligation of the contract.

ID.-ACCEPTANCE OF OFFER-COMPLETION OF CONTRACT-VOLUNTARY COMPLIANCE.-To render a proposed contract binding there must be an accession to its terms by both parties, and a mere voluntary compliance with its conditions by one party who had not previously assented to it does not render the other liable for it. ID.-MUTUALITY OF ESTOPPELS.-Estoppels must be mutual; and the party failing to sign the contract cannot be estopped by a voluntary compliance with a part of its conditions, where the party signing he same cannot be held bound under the proposed contract, but can repudiate it at any time.

APPEAL from a judgment of the Superior Court of Fresno County and from an order denying a new trial. J. R. WEBB, Judge.

The facts are stated in the opinion of the court.

L. L. Cory, for Appellant.

If the parties to an alleged contract agree that it shall be reduced to writing in an instrument to be signed by them it will not be obligatory on them without the execution of such written instrument. (Hoen v. Simmons, 1 Cal. 119; 52 Am. Dec. 291; Tewksbury v. O'Connell, 21 Cal. 60; Fuller v. Reed, 38 Cal. 99; Los Angeles etc. Co. v. Phillips, 56 Cal. 539; Wristen v. Bowles, 82 Cal. 84; Pacific Rolling Mill Co. v. Riverside etc. Ry. Co., 90 Cal. 627; Emeric v. Alvarado, 64 Cal. 539.) In contracts where the promise of the one party is the consideration for the promise of the other, the promises must be con