Wells, Fargo & Co. v. Anthony , 1868 Cal. LEXIS 147 ( 1868 )

By the Court, Crockett, J.:

The motion to dismiss the appeal in this case must prevail. The appeal is from a final order entered by a County Judge, discharging the defendant from imprisonment, under the “Act for the relief of persons imprisoned on civil process,” passed April 22d, 1850. (Stats. 1850, p. 407.) The order was entered December 3d, 1867, and the notice of appeal was served and filed February 24th, 1868—more than sixty days after the entry of the order.

The plaintiffs maintain that it was an original “special proceeding,” from which, under section three hundred and thirty-six of the Practice Act, an appeal would lie within twelve months after'the entry of the final order; whereas, the defendant insists, first, that it is not an appealable order; and second, that if appealable, it is so on the ground that it is a “special order made after final judgment,” and that, under section three hundred and thirty-six of the Practice Act, an appeal could not be taken after sixty days from the entry of the order.

The argument for the plaintiffs is, that the order in question is not a “special order made after final judgment,” because it is not made by the same Court which tried the original action, or the Judge thereof, but by another Court or Judge; and that in the proceeding the defendant in the original action becomes the actor, and the original plaintiff becomes a defendant pro hac vice.

We apprehend, if the proceeding to discharge the defendant had taken place before the Judge of the Court which rendered the original judgment, no one could have entertained a doubt that the order of discharge would in that event have been a “special order entered after final judgment” in the same cause. It would not have been an original “special proceeding” in the sense of the statute; but only a special order by the Court or Judge having jurisdiction of the action, entered after final judgment.

In our opinion, it is none the less a “special order entered after final judgment” because it was entered by the Judge of another Court, who is authorized by law to take jurisdiction of such proceedings. His acts in that behalf are only ancillary to the jurisdiction of the Court which rendered the judgment; and the order which he entered is as much an order in the original action as if it had been made by the Court or "Judge which tried the cause.

In this view of the case, the appeal was not taken in time, and must be dismissed, and it is so ordered, and the remittitur directed to issue forthwith.