This is an action brought to restrain defendants from discharging or depositing tailings and other refuse matter from their mine into Yuba river or certain named branches thereof. A motion was made by the defendants, or some of them, to change the place of trial from Yuba county, and upon hearing the trial court granted the motion, but transferred the case to a county different from that which, in the judgment of both parties, the court was without authority to name. Both plaintiff and defendants *122 appealed from the order. The parties have filed a stipulation that the appeal be taken up at the earliest opportunity.

The action is clearly one in equity and without the jurisdiction of this court. We held, in Rickey Land & Cattle Co. v. Glader, 6 Cal. App. 113, [91 Pac. 414], that where we are without jurisdiction to determine the merits of the controversy, we are also without jurisdiction to entertain an appeal from any judgment entered in the case, whether or not involving the merits. In this view it becomes our duty to transfer the ease to the supreme court, under article VI, section 4, of th'e’ constitution. The appeal, though improperly taken to this court, is not lost. The cause and all the papers thereto are, under rule XXXII, transferred to the supreme court.

Burnett, J., and Hart, J., concurred.

The appeal in this case was retransferred by the supreme court to the district court of appeal of the third appellate district, on December 6, 1909, and an opinion was rendered therein on December 17, 1909, which is reported post, p. 223,