Ware v. Robinson

Burnett, J., delivered the opinion of the Court—Terry, C. J., .concurring. The plaintiffs commenced their action, upon a promissory note, against Swedenstierna, in the Superior Court of San Francisco. The summons was returned, without sei’vice, and the attoi’ney of the plaintiffs made affidavit that he was informed and believed that Swedenstierna was then in the State, and concealed himself to avoid the sei’vice of process. The Court, thereupon, made an [111]order appointing an attorney to appear for Swedenstierna. The attorney appeared, and put in a general denial; and judgment was rendered for plaintiffs. Upon this judgment execution was issued, and the attorney of the plaintiffs made affidavit that he was informed and believed that Robinson and Devoe had property of Swedenstierna’s in their possession. An order was made by the Court, requiring the garnishees to appear and answer before the referee named in the order. They appeared, but refused to be examined, upon the ground that the Court had no jurisdiction of the person of Swedenstierna, and therefore the proceedings were void. The referee reported the fact to the Court; whereupon the Court adjudged the said Robinson and Devoe guilty of a contempt of Court, from which they appealed.

The learned counsel of the plaintiff asks this Court to dismiss the appeal, upon the ground that this was a case of contempt, from the decision of which no appeal will lie. This objection does not seem to be well taken. This question was very fully considered in the several cases of E. A. Rowe on habeas corpus, Januarjr Term, 1857.

Coming, then, to the merits of the case, the learned counsel for Robinson and Devoe insist that that portion of the thirty-first section of the Practice Act, allowing the Courts to appoint attorneys for defendants, in lieu of publication, “ is unconstitutional, and against the principles of a free government.”

The Constitution of the United States, and the Constitution of this State, both provide that no person shall “ be deprived of life, liberty, or property, without due process of law.”

Whether this restriction applies as well to the Legislature as to the judiciary, it is not now necessary to determine, as the question is not involved in this ease. If the personal judgment, in cases like this, was intended by the code to be' final and conclusive, under all circumstances, after the expiration of six months, then its constitutionality might admit of very grave doubt. But we cannot think such was the intention of the Legislature.