Gilman v. County of Contra Costa

Murray, C. J., after stating the facts, delivered the opinion of the Court—Burnett, J., concurring. The first question presented is, whether an appeal will lie in such a case ? The three hundred and thirty-sixth section of the Practice Act gives an appeal from “ any special order made after judgment.”

The question, then, is, what is an order ? It may be defined to be the judgment, or conclusion of the Court, upon any motion or proceeding. It means cases where a Court or Judge grants affirmative relief, and cases where relief is denied. This is apparent from the language of the statute itself, which gives an appeal “ from an order refusing to change the qdace of trial,” etc. The counsel for the respondent relies upon the decisions of this Court, in Baker v. Rosenthal, Henley et al. v. Hastings, and The People v. Stillman.

The first case was an appeal from an order refusing to discharge an attachment before final judgment. In the second case, we held that the party should have appealed from the original act complained of, and not an order refusing to vacate it, and in the last case it was held that no appeal lay from an order refusing to change the place of trial, until after final judgment.

The appellants being entitled, then, to their remedy by appeal, it remains to be ascertained whether the Court below correctly refused to quash the execution.

At common law, an action did not lie against a county, and the law was the same in this State until the eleventh of May, 1854, when the Legislature passed a special statute, authorizing counties to sue and be sued. Previously, on the first of May, of the same year, an act had been passed, exempting the property of counties from forced sale upon execution.

The respondent contends that, inasmuch as the debt was contracted before the act of May 1,1854, it is not affected by the act. In other words, that the act is not retrospective, and if it were, it would be unconstitutional.

The answer to this proposition is, that the act is but an affirmance of the common law. At the date of its passage, the plaintiff had no right, by his contract, to sue the county, take out an [58]execution, and sell the county buildings; so that the obligation of no contract is impaired, so far as he is concerned.

The levy upon the county revenues, in the hands of the treasurer, was illegal and void. These revenues are authorized by law, and appropriated to distinct purposes, and are not the subject of seizure upon execution.