Robb v. Robb , 6 Cal. 21 ( 1856 )

The opinion of the Court was delivered Mr. Chief Justice Murray.

Mr. Justice Heydeneeldt concurred.

This is an appeal from an order of the District Court, refusing to set aside a decree rendered 'at a previous term. The appellant relies on two decisions of this Court as maintaining the practice adopted by him.

In the case of Kewen v. Bidleman, (2 Cal., 248,) the sufficiency of the remedy by motion was not questioned, and the Court below entertained the application by consent of attorneys, so that the limitation of the statute upon the powers of the Court was not under consideration.

In the case of The People v. Laforge & Ball, (3 Cal., 130,) Mr. Justice Heydenfeldt treats the application to set aside the judgment of the inferior Court as an original bill in chancery; while Mr. Justice Wells was of the opinion that the proceeding by motion was regular, relying on the case of Kewen v. Bidleman, which, as we have already stated, does not decide the point.

As a rule of practice, it is of but little importance whether we treat the appellant’s motion and affidavit as a bill in equity or require him to proceed formally; but, having held in repeated cases that inferior Courts cannot grant a new trial, or interfere with their judgments or decrees, in any material part after the adjournment of the term, we think it best for the sake of uniformity to conform to this rule.

The appellant must assert his rights by a proceeding in the nature of a bill to impeach the original decree for fraud, etc.

Judgment affirmed with costs.