2 Cal. 251 | Cal. | 1852
delivered the opinion of the Court.—(After stating the facts.) The magistrate had no jurisdiction to the extent of the debt claimed, which was $1000. He had no authority to issue the attachment, nor to take the bond upon which the suit is brought; and that bond was taken after the dismissal of the attachment by the appellants.
The respondent exercised full authority over his property, which had been levied on under the attachment; and that on the day of the levy. He disposed of it for his convenience and legal relief, and it was so received by the magistrate; and the appellants do not appear to have held any control over it whatever. However much the respondent may have been injured in point of feeling, there does not appear to have been any legal ground upon which to rest this particular action; and no jury can be permitted to pass so entirely beyond the record as to put their finding at total variance with the declaration. That rested exclusively upon the bond; and no other cause of action is assigned. (?) The verdict evidently looks to injuries which were no further connected with the attachment than as being concurrent in point of time: and whether the appellants, or others, were the parties liable for such other damages for a different cause, it is certain that they were under no legal liability on this bond. It was inoperative; and could by no rule of law be made to take a retroactive application, under the circumstances.
The bond is the antecedent of the attachment, and accompanies in point of time the affidavit which must be made before the writ is issued. It depends for its legal effect upon the writ.
The justice in this case had no authority to issue, an attachment, or to take such a bond founded upon it. He was, under our statutes, totally without jurisdiction, rations materise. A bond exacted by an officer when he has no authority to require it is void. Thompson v. Lockwood, 15 Johns. 256. There are other authorities to the same point.
However, the attachment and levy had been vacated by the joint act of the respondent, the justice, and the sheriff. It is obvious that the levy was disregarded from the first, and the act of vacation was on the same day, and within a few hours of the levy. This fraction of time, in the absence of actual damages, under the circumstances, even if all the proceedings had emanated from an officer having competent jurisdiction, and the respondent, the Court, and the sheriff, had treated the process in like manner, as in this case, would have been fatal to any legal claim for recovery against the appellants. A fortiori, where there was no authority, the reason for this would be much stronger.
The cause of injury must proceed out of the attachment. Where, however, that was made by the particular parties mentioned, (the respondent being the chief actor,) inoperative, and no evidence existing that the mere fact of the levy had caused actual injury, the bond having been taken without authority, and no attachment upon which to rest, nor any of its effects and consequences to relieve against, was void ah initio, and it would be in the face of all lejal precedent and sound policy for this Court to give its sanction to a judgment founded upon such an attachment and such a bond.
Our statute has prescribed who may issue an attachment, and take the proper bond, and under what circumstances. This must be respected. The Court cannot change the law. We can only administer it. Every officer is presumed to know his duty. If he does not, and transcends his powers, the responsibility would rest with him; and the case would have to be peculiar, and
Upon the trial of this case the bond was not legal evidence, for the plain reason that it it was void; and the Court ought to have so ruled. Upon the face of the record, it is apparent that the Court below ought to have dismissed the suit, and saved the party from any unnecessary accumulation of costs. The Court erred in not granting the motion to dismiss.
There was also a motion for a new trial. This was refused. It ought to have been granted. It is not the province of this Court to point out the particular proceedings which ought to have been adopted. It is enough that there is no wrong for which there may not be ample redress. But we cannot pervert legal remedies. This would be a species of judicial legislation. It is a mistake to suppose that, because the statute of 1851 sets out with declaring that there shall be but one form of civil action, that therefore when a party declares upon a certain cause of injury for redress, that other causes which were concurrent and intimate with it, may, as a matter of course, either be given in evidence, or made the basis of the verdict. Justice requires that parties should be confined to that to which they are entitled within their pleadings. In this case, according to the averments in the complaint, there was no legal ground upon which to rest a verdict. It is true, that it was in evidence that the respondent had suffered injury, at the same time, from the prosecution of a charge of felony, of which he was acquitted; and if this was done upon proper proof, it gave to it force and authority in a different _ direction: but there was no legal rule by which it should have been allowed to connect itself with, and control the case made under the declaration. Exactly the contrary.
Our decision is, that the judgment of the Court below be reversed; and it is ordered that the case be dismissed, with costs to the respondent.
