Adams & Co. v. Town

Wells, Justice, delivered the opinion of the court. Heydenfeldt, Justice, concurred.

This action was commenced in a Justice’s Court, of Yuba County. In the summons and proceedings, the defendants are in no other way designated than by the name of “Adams & Co.” Wheher this is a sufficient designation of the defendants under our itatute, it is unnecessary to decide. The constable who servid the summons returned the same with his certificate, that he lad served it, “ by leaving a copy thereof with Captain Chales B. Macy, the 17th day of January, 1853.” On the return day of the summons, no one appearing for the defendants, the fustice proceeded to take evidence as to “ the damages” sustainid by the plaintiff, and gave judgment against the defendants [248]for $369, including the costs. On appeal to the County Court of Yuba County, the judgment was affirmed. The case comes to this court from the County Court on a writ of error.

In examining the record, we can find nothing to connect Charles B. Macy with Adams & Co., who are named as defendants. He is not mentioned in any of the proceedings of the action, as being a partner, or as having any connection with them. Nor does the certificate of the office connect him in any manner with that firm. The Justice could, with as much propriety, have entered judgment on a certificate of service upon any other person. The respondent objects that this court cannot issue a writ of error to bring up a judgment of the County Court for review. By the Constitution, this court has appellate jurisdiction in all cases where the matter in dispute exceeds two hundred dollars, and this court, and each of its justices, are expressly authorized to issue all writs and process necessary to the exercise of its appellate jurisdiction. (Const., Art. VIL, Sec. 4.) By the 7th section of the Judiciary Act of 1851, this court, and each of its justices, are authorized to issue all writs necessary or proper to the complete exercise of the powers conferred by the Constitution. A similar provision is retained in the Judiciary Act of 1853. It would seem that the power is ample enough, if the writ be either necessary or proper.

In the Practice Act, no provision is made for any appeal from the County Court to the District Court, from a judgment rendered on appeal, except in cases involving the legality of a tax, fees, toll, impost, license, municipal or other fine, or the possession of real property; nor is there any provision for an appeal directly from the County Court to this court. This omission has been corrected by an Amendatory Act passed in May last; but at the time the judgment in the County (hurt was rendered, and the writ of error in the present case was issued, there was no provision of j law by which this case could have reached this court, except by some process issuing from this court. It was therefore a proper and necessary vrit. Section 333 of the Practice Act, applies only to the ncovering of a judgment by appeal. The same Act in other ttles