Willoughby v. George

4 Colo. 22 | Colo. | 1877

Elbebt, J.

The judgment in this case was rendered after the Code went into effect.

A writ of error is a new suit. Filley v. Cody, 3 Col. 221, and cases cited.

The case does not therefore come within the saving clause of section 447 of the Code.

Section 335 of the Code provides “ a judgment or order in a civil action, except when expressly made final, may be reviewed by appeal as prescribed by this act and not otherwise.”

The phrase, “ except when expressly made finalf is peculiar and lias given rise to doubts, as to whether the section ought not to be held to apply to interlocutory judgments and orders only. By reference, however, to section 333 of the California. Code, of which our Code is largely a transcript, we find substantially, and almost in language the same provisioh, except that the phrase there reads, ‘ ‘ except when'expressly made final by this Code.” Harston’s Prac., § 936.

As the phrase is still susceptible of the same construction as if the omitted words had been adopted, we do not feel authorized to say that their omission was with the design of changing or limiting the force or effect of the section as it existed in the Code from which it was adopted. The exception then is of judgments and orders which under the law are not reviewable by any mode.

In this view the provision is plain and positive, and under it, in the case of judgments rendered after the Code went into effect, the remedy is by appeal and not otherwise. Haight v. Gray, 8 Cal. 300.

If it is possible for a case to occur not falling within the cases prescribed in the act as appealable, in such a case a different view might be taken.

The writ of error does not lie. The Constitution saves' the writ to the county court only. _

The motion to quash is sustained.

Motion sustained.