Ex Parte Harker

49 Cal. 465

• Court: California Supreme Court
• Decided: July 1, 1875
• Docket: No. 10,159
• Status: Published

Opinion

By Wallace, C. J.:

The petitioners were arrested and are now held in custody by the Sheriff by virtue of a writ of ne exeat issued by the District Court.

1. It is provided by section 478 of the Code of Civil Procedure as follows: “Ho person can be arrested in a civil

action, except as prescribed in this Code.” A civil action is an action arising out of (1,) an obligation; or (2,) an injury. (Id. Sec. 25.) The action here, whether to be considered as one at law, or in eqiuty, is therefore a civil action, and by the express provisions of the Code, a defendant in such an action can be arrested only as prescribed in the Code itself.

2. It is argued, however, that the power to issue the writ of ne exeat is preserved by the last clause of the fifth subdivision of the fifty-seventh section of the Code of Civil Procedure, which authorizes the District Courts to issue “writs of mandate, review, prohibition, habeas corpus, and all writs necessary to the exercise of its powers.”

We see no necessary conflict between the several provisions of the statute referred to. The powers of the District Court, whether sitting in equity or at law, to arrest a defendant on a civil action, are defined by the Code, and the writ by which, and the proceedings upon which such an arrest is to be effected are therein prescribed, and the writ of ne exeat is not one. Nor is there any force in the suggestion made at bar, that it was not competent to the Legislature to abolish the writ, because jurisdiction in equity cases is conferred upon the District Courts by the Constitution. Jurisdiction is also conferred by the Constitution upon those Courts in certain cases at law; but it is apparent, in equity no less than at law, that the mere procedure by which jurisdiction is to be exercised may be prescribed by the Legislature, unless, indeed, such regulations should be found to substantially impair the constitutional powers of the Courts, or practically defeat their exercise.

It results that the petitioners must be discharged, and it is so ordered.'

By Crockett, McKinstry, Niles, and Rhodes, Justices:

Having heard the argument in the above entitled cause, we concur in the foregoing opinion and order of the Chief Justice.