Tyler v. Connolly

Thornton, J.

This is an application made to this court to prohibit the sheriff from proceeding to execute the judgment rendered against George W. Tyler in a proceeding against him for a contempt. The prohibition or stay is asked for on the ground that Tyler has taken an appeal from the judgment of contempt above mentioned, has perfected his appeal by giving the undertaking required by law, and that such undertaking operates as a stay; that, nevertheless, steps have been taken to execute the judgment.

If the judgment of contempt is appealable, the moving party is entitled to a stay.

COURT JURISDICTION.

The appellate jurisdiction of this court is conferred on it and is defined by the Constitution. It has such jurisdiction “ in all cases in equity, except such as arise in Justices’ Courts; also in all cases which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy amounts to three hundred dollars; also in cases of forcible entry and detainer, and in proceedings in insolvency, and in actions to prevent or abate a nuisance, and in all such probate matters as may be provided by law; and also in all criminal cases prosecuted by indictment or information in a court of record on questions of law alone.” (Const, art. vi. § 4.)

It is argued that because the judgment against Tyler exceeds three hundred dollars, that the appeal is given by the Constitution. But the Constitution does not give an appeal in all cases where the judgment exceeds three hundred dollars; it gives it only when the demand, exclusive of interest, exceeds that sum. There was no demand for any sum in the proceeding against Tyler. The demand made appears in the pleadings—either in the complaint or answer. (Dashiell v. Slingerland, 60 Cal. 653.)

We know of no demand for a sum of money in a proceeding for a contempt. The law does not require or authorize such demand to be made. It would be most unusual to make it; and if made, it would be entirely unnecessary and without avail. The contention on the ground stated cannot, in our opinion, be maintained.

It has been held by this court that a proceeding for, contempt is a criminal case. (Ex parte Crittenden, 62 Cal. 534.) But as it is not prosecuted by indictment or information, its character as a criminal case furnishes no ground for an appeal. The Constitution expressly limits appeals to criminal cases prosecuted in the mode above stated. We find no warrant in the Constitution for an appeal'in a proceeding for contempt.

Conceding that the legislature may confer appellate jurisdiction on this court in cases not provided for in the Constitution, we have been referred to no statute giving the right to appeal from a judgment in a contempt case. On the contrary, in our judgment, such right is withheld by section 1222 of the Code of Civil Procedure. That section is as follows: “The judgment and orders of the court or judge made in cases of contempt are final and conclusive.” In appeal of S. O. Houghton, 42 Cal. 35, these words, “ final and conclusive,” in a statute in regard to a judgment of the county court, were held to deny an appeal from such judgment.

It may be added here that it was conceded on the argument that an appeal was not given by statute.

The conclusion here reached is sustained by the reasoning in Huerstal v. Muir, 62 Cal. 479. In People v. O’Neil, 47 Cal. 109, we think the court mistook the law in holding that the judgment in that case (which was one for contempt) was appeal-able. Ho authority is referred to in the opinion to sustain such a rule, nor is any law, constitutional or statutory, granting a right of appeal referred to or cited. We think a sounder conclusion on this subject was reached by the learned Justice Crockett, who wrote the opinion in the case above cited, and another justice, Rhodes, in Aram v. Shallenberger, 42 Cal. 275-279. What is said in Ex parte Hollis, 59 Cal. 408, as to an appeal, is mere dictum.

We are of opinion that O’Neil’s case does not properly declare the law on the point under discussion, and should be overruled. (See Larrabee v. Selby, 52 Cal. 508.) The cases cited from New York (Sudlow v. Knox, 7 Abb. Pr. N. S. 411, and Erie R. R. Co. v. Ramsey, 45 N. Y. 637), throw no light on the subject discussed, as the decisions in those cases were made on statutes entirely different in their provisions from the provisions of the Constitution and statute governing the matter in this State.

The application must be denied and it is so ordered.

McKinstry, J., Myrick, J., Sharpstein, J., and Eoss, J., concurred.