29 Cal. 415 | Cal. | 1866
Petition for a mandamus to be directed to the defendant, commanding him to settle' a statement, on motion for a new trial in Grow v. His Creditors.
It appears that Wetzel, one of the creditors, filed his written opposition to the petitioner’s discharge, on the ground of fraud. The issue was tried by a jury, who found fraud as alleged. Grow moved for a new trial, for errors of law and on the ground that the verdict was not justified by the evidence. .The Judge refused to settle a statement on new trial duly filed and submitted.
Proceedings in insolvency not “ special cases.”
Proceedings in insolvency are no longer to be regarded as “ special cases,” in the sense in which that phrase was applied to them prior to 1863, for by the amendments of the Constitution the jurisdiction became organic. To that extent the jurisdiction of the County Courts in insolvency rests upon the same foundation as the general jurisdiction of the District Courts, and that of the Supreme Court, both original and appellate.
We held, in Dorsey v. Barry, 24 Cal. 449, relied upon in argument, that- the jurisdiction in ’contested election cases was special — a statute creation ; that the proceedings were intended to be summary, and that the subject matter made it
Further, if County Courts cannot grant new trials in insolvency, it follows that they cannot do so in actions of forcible entry and detainer. The jurisdiction in both cases rests upon the same basis, and legislation in aid of the jurisdiction is in both equally complete and exhaustive. But that a new trial may be granted by a County Court in a forcible entry case is not open to controversy.
New trials in insolvent cases.
Power to grant new trials is conferred upon all the Courts referred to in the Practice Act; and wherever an appeal lies to this Court from an order granting or refusing to grant a new trial, it becomes the duty of the Judge to settle a correct statement properly presented. Under the Judiciary Act of 1863 we are authorized to review such orders when made in cases within the limits of our jurisdiction in error. It is true, as the respondent claims, that cases in insolvency are not “ cases
Were the question a new one, we might doubt our jurisdiction, but it has been settled by long and unbroken usage. The question is broadly within the reasoning in Conant v. Conant, 10 Cal. 249, and furthermore, it was directly decided in Fish v. His Creditors, 12 Cal. 281. The argument in that case has been strengthened rather than weakened by the constitutional amendments.
The order is made absolute.