People ex rel. Sturgis v. Shepard

California Supreme Court

People ex rel. Sturgis v. Shepard

28 Cal. 115

CourtCalifornia Supreme Court

DecidedApril 15, 1865

StatusPublished

Cited by10 cases

This text of 28 Cal. 115 (People ex rel. Sturgis v. Shepard) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Sturgis v. Shepard, 28 Cal. 115 (Cal. 1865).

Pincite

Opinion

By the Court,

Shafter, J.

Certiorari, to review the proceedings of the County Court of Contra Costa County, in Worth v. His Creditors.

It appears that an order was made ip the said proceeding, on the 23d day of July, 1864, restraining the relator from enforcing the collection of a judgment for six thousand nine hundred and thirty dollars, recovered by him against Worth in the District Court of the Fourth Judicial District, January 6th, 1864; and that a judgment was entered on the 7th of September, 1864, discharging Worth from his debts. The point is made that it is apparent on the face of the record that the County Court had no jurisdiction to make the order or to render the judgment of discharge; and for the alleged reason that the insolvency proceeding had, anterior to both the order and judgment, been ended by a final judgment in the District Court wherein it was originally instituted. Should this be conceded, it would follow that the supplementary action of the County Court was void in the extreme sense; leaving the plaintiff at liberty to enforce the collection of his judgment at discretion. But assuming that the petitioner as one of the creditors of Worth, has the right to call upon this Court to review the proceedings of the County Court and that our interposition is essential to his just relief, then the remedy of the defendant is by appeal and not by writ of review. The latter lies only when the former does not. It was decided in Kohlman v. Wright, 6 Cal. 231, and in Fisk v. His Creditors, 12 Cal. 281, not only that the Supreme Court had jurisdiction in error in insolvency cases, but that such cases might be brought up by appeal. The jurisdiction in error has not been withdrawn by the constitutional amendments ; nor has the three hundred and thirty-sixth section of the Practice Act, [118]*118giving an appeal from final judgments in special proceedings, been repealed. ,

Petition dismissed.

Mr. Justice Cueeey expressed no opinion.

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By the Court,

Shafter, J.

Certiorari, to review the proceedings of the County Court of Contra Costa County, in Worth v. His Creditors.

It appears that an order was made ip the said proceeding, on the 23d day of July, 1864, restraining the relator from enforcing the collection of a judgment for six thousand nine hundred and thirty dollars, recovered by him against Worth in the District Court of the Fourth Judicial District, January 6th, 1864; and that a judgment was entered on the 7th of September, 1864, discharging Worth from his debts. The point is made that it is apparent on the face of the record that the County Court had no jurisdiction to make the order or to render the judgment of discharge; and for the alleged reason that the insolvency proceeding had, anterior to both the order and judgment, been ended by a final judgment in the District Court wherein it was originally instituted. Should this be conceded, it would follow that the supplementary action of the County Court was void in the extreme sense; leaving the plaintiff at liberty to enforce the collection of his judgment at discretion. But assuming that the petitioner as one of the creditors of Worth, has the right to call upon this Court to review the proceedings of the County Court and that our interposition is essential to his just relief, then the remedy of the defendant is by appeal and not by writ of review. The latter lies only when the former does not. It was decided in Kohlman v. Wright, 6 Cal. 231, and in Fisk v. His Creditors, 12 Cal. 281, not only that the Supreme Court had jurisdiction in error in insolvency cases, but that such cases might be brought up by appeal. The jurisdiction in error has not been withdrawn by the constitutional amendments ; nor has the three hundred and thirty-sixth section of the Practice Act, [118]*118giving an appeal from final judgments in special proceedings, been repealed. ,

Petition dismissed.

Mr. Justice Cueeey expressed no opinion.

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Bluebook (online)

28 Cal. 115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-sturgis-v-shepard-cal-1865.

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