1 Cal. 33 | Cal. | 1850
By the Court,
Two causes are assigned for the dismissal of the appeal. 1st. That an appeal will not lie from the decision of the court below, setting aside the verdict of the jury and granting a new trial. 2d. The decision appealed
That appeals from any judgment, order, or determination of the court of First Instance, taken before the passage of the statute of February 28th, 1850, and from any such judgment, order, or determination, made or rendered after the passage of said Act, will lie to this court, is clear from the third and sixth sections of said Act. This appeal was taken on the 8th day of February, A.D. 1850, and was clearly within the provisions of said third section.
The sixth section regulating the mode of effecting an appeal, among other things, provides, “ That appeals may be taken “ from any final judgment of any court of First Instance, ren- “ dered since the first day of January, A, I). 1847, or from any “ judgment or order of said court which may "be rendered any “ time hereafter.”
The case of Loring v. Illsley, decided by this court, falls within the provisions of said sixth section, the judgment having been rendered before, and the appeal taken, after the passage of the Act. A writ of error will not usually lie for the purpose of reviewing any order or judgment of any inferior court founded upon the sound discretion of the court, but this court possesses more power than ordinarily pertains to a court of errors, to wit: it is styled an appellate court, and is authorized by law to entertain appeals from interlocutory orders, decrees, judgments, and determinations of all the courts of this state, in the maimer limited and prescribed by law. It is a court of the last resort, except in the few instances in which appeals will lie from its decisions to the supreme court of the United States, which right is suspended until the admission of the state into the Union. In the case of Campbell v, Stokes, 2 Wendell, 145, Chancellor Walworth, in delivering the unanimous opinion of the court of errors, says, “ There is a manifest difference to be “ observed between the proceedings on writs of error in this “ court and the proceedings of the supreme court , on writs of “ error to inferior tribunals,” from which it may be inferred that courts apparently possessing the same prerogatives and
It seems to be extremely questionable whether courts of First Instance possess the power of granting new trials, as practiced in courts of common law. That such courts could set aside any interlocutory order or sentence, there seems to be no doubt, but a definitive sentence once pronounced could not be altered except by the next superior court in grade on appeal. (Escriche, Sala's edition, 284-5.)
It appears to be repugnant to the policy of the civil law system of practice to permit the courts to set aside or revise their judgments once rendered, so jealous is that system of the motives which might induce the judges to review their own sentences after they had once been declared. The court in this case submitted the assessment of damages to a jury, who returned a verdict for the plaintiff for the sum of $1000, a sum far less