Livermore v. Campbell

52 Cal. 75 | Cal. | 1877

By the Court :

The question underlying the discussion herein is, whether the order of the District Court setting aside the judgment entered by the Clerk is- appealable.

Section 989 of the Code of Civil Procedure gives an appeal: In the first subdivision from a final judgment, etc.—in the third subdivision from a special order made after final judgment.

It has been repeatedly held by this Court that an appeal lies from a void judgment, and it follows that an order setting aside a judgment in form, on the ground that it is in fact invalid, is also appealable, and until such appeal is heard this Court will not inquire whether the Court or Clerk had or had not jurisdiction to enter the judgment.

The case being in this Court by appeal, the Court below cannot proceed in it until the appeal is heard and determined. (Code of Civil Procedure, sec. 946.)

Let a peremptory writ of prohibition issue as prayed for.