1 Cal. 134 | Cal. | 1850
By the Covert,
The appellant recovered a judgment, on the 19th day of February last, against the respondent for $5948, in the court of First Instance of the district of San Joaquin. This judgment was, by virtue of the act superseding certain courts, transferred into the district court for the county of San Joaquin in the fifth judicial district, and an execution was issued thereon and levied upon the property of the respondent. lie then filed a complaint in the district court, alleging that the judgment was obtained by means of collusion, venality and corruption, and also complaining of irregularities, errors, and abuse of power by the court, during the progress of the trial which resulted in the judgment. There seems to have been no ground for the charge of collusion, &c. Upon this complaint an injunction was issued, and the sheriff restrained from proceeding under the execution. The appellant demurred to a portion of the bill, pleaded the judgment of the court of First Instance in bar, and supported his plea by answer under oath denying the matters charged in the bill on which the judgment was sought to be impeached. The cause was heard upon the pleadings, no testimony being introduced by either
It is claimed by the counsel for the appellant, 1st, That the district court had no power to set aside, modify, or in any way invalidate the judgment rendered by the court of First Instance; and 2d, That, admitting the power, the facts do not present a proper case for the exercise of it; whilst, on the part of the respondent, it is contended, 1st, That the return of the district court does not appear to be a full and complete record, and that the presumption, therefore, must be, that there was sufficient evidence to warrant the decision of the district court; and 2d, That the determination appealed from is not a final judgment from which an appeal may be taken.
The first question to be determined is, whether the decision of the district court be a final judgment. By section 258 of the Practice Act of April 22, 1850, it is enacted that no appeal shall lie from any hut a final judgment; and it is, to say the least, very questionable whether section 279, which authorizes the court to reverse, affirm, or modify any judgment, order, or determination appealed from, can be properly construed as qualifying the positive prohibition of the previous section. 'What, then, is meant by the term final judgment, as used in this statute ?
In the case of Loring v. Illsley, decided at the March term of this court, we ventured from recollection, unaided by authorities, of which there was then none at our command, to give a definition of an order as distinguished from a final judgment. We find, on looking into the authorities, that the definition there attempted, although sufficiently broad to cover the case then under consideration, is too restricted, and that the term final judgment has a somewhat more comprehensive meaning.
The case of Beach v. Fulton Bank, (2 Wend. 225,) and the case of Mc Vickar v. Wolcott, (4 J. R. 510,) cited by the counsel for the appellant, are not in point. The former was an appeal from an order of the chancellor denying an application made by the appellants to open the proofs in the cause, for the
On the other hand, the supervisory control of the court of errors over the proceedings of the supreme court of New York, reached only to final judgments, and the decisions in such cases* therefore, are entitled to consideration in determining the question under discussion. In Yale v. The People, (6 J. R. 602,) which went up to the court of errors from a decision of the supreme court refusing to allow a habeas corpus, it was held, that whenever a decision was made in the supreme court, which was final, and of which a record could he made, and which decided the rights of property or personal liberty, the court of errors had jurisdiction. In Clason v. Shotwell, (12 J. R. 31,) on an indictment for a forcible entry and detainer, no return could be obtained to a certiorari, by reason of the death of the justice before whom the proceedings were had, and the supreme court had investigated the cause on affidavits and awarded a restitution. The court of errors held, that it might review the proceedings on the evidence presented to the court below ; and it was said, that the true inquiry, in determining the question whether the decision under review was an order or a final judgment, was whether the judicial proceeding constituted a cause by itself, and had received its final decision in the supreme court; if so, the case contemplated by the constitution existed, and the cause might be brought to the court of errors for revision. The rule as finally settled in that court, is that every definitive sentence or decision of the supreme court, by which the merits of a cause are determined, although it be not technically a judgment, or the proceedings are not capable of being enrolled, so as to constitute what is technically called a record, is a judgment within the meaning of the law, and as such, subject to the revisory jurisdiction, of the court of errors.
Does, then, the determination appealed from in the case at bar come within the rule as above laid down ? The proceeding was commenced as an original suit, in the ordinary way, by filing a complaint; and this complaint was contested by the defendant, in his answer thereto, as an original proceeding, and
The next question is as to the completeness of the record. It is claimed not to be so, on the ground of a supposed defect in the certificate of the clerk of the district court. The certificate is, that the return is a correct'transcript of the proceedings in the cause, but does not contain the usual, and in most eases necessary words, that it is a correct transcript of the whole thereof. It is not pretended that the record is defective in any respect, except that it does not contain any evidence; and upon this negative ground the argument is based that we must presume,.
First, as to the existence of the power. The case must be con trolled by the act regulating appeals, approved February 28th, 1850, which gives to the supreme court alone a revisory jurisdiction, by way of appeal, over judgments of courts of First Instance, whether such judgments have been transferred to the district court or not. By the 29th section of that act, jurisdiction over judgments rendered in courts of First Instance is con-ierred, in general terms, upon the district courts, upon the
Secondly. If the district court possessed the jurisdiction claimed, was it properly exercised. The bill alleges matters which would probably be sufficient to invalidate the judgment