McNiel v. Borland

Norton, J. delivered the opinion of the Court—Cope, C. J. and Crocker, J. concurring.

The provision of our State Constitution, that County Courts shall have jurisdiction in special cases as the Legislature may prescribe, was copied from the Constitution of the State of New York. The Judges of the Court of Appeals of that State are about equally divided as to the proper meaning of the provision. One portion consider that it is the purpose of the Constitution to confer upon the Supreme Court, which corresponds to our District Court, general jurisdiction in all cases properly cognizable in Courts of Law and Equity, without specially designating them; and also to authorize the Legislature to confer upon County Courts jurisdiction in such cases as the Legislature might think appropriate to that tribunal, and should specially designate. Another portion consider that the Constitution intends only to authorize the Legislature to confer jurisdiction upon County Courts in cases which are in their character special, by differing from those cases of which the Supreme Court would take cognizance by virtue of its powers as a Court of general jurisdiction. (Arnold v. Rees, 18 N. Y. 57.) The latter is the view taken by the Supreme Court of this State. (Parsons v. The Tuolumne County Water Co., 5 Cal. 43; Brook v. Bruce et al., 5 Id. 279.) In these cases our- Supreme Court say: [148]“ The 1 special cases,’ therefore, must be confined to such new cases as are the creation of statutes, and the proceedings under which.are unknown to the general framework of Courts of Common Law and Equity.” There remains difficulty, however, in determining what are such special cases.

It is a maxim that there can be no right without a remedy; and it is not easy to imagine any new case in which a right should be conferred by statute, for which a mode of enforcing it would not be found in the general framework of the Courts of Common Law and Equity. In Hew York, some of the Judges, who held that these special cases must be in them character different from those falling within the cognizance of Courts of general jurisdiction, have nevertheless concurred in holding that a proceeding for the partition of land and an action to foreclose a mortgage were special cases. (Arnold v. Rees, cited above; Doubleday v. Heath, 16 N. Y. 80.) And in our State the same has been decided in regard to proceedings in insolvency. (Harper v. Freelon, 6 Cal. 76.)

The lien of a mechanic upon a house and the ground on which it stands, as security for the amount due to him for work done and materials furnished in building the house, irrespective of any contract for such a lien, is the “ ereation’of statute,” and the proceedings to enforce it as provided by the law of this State as amended in 1861, “ are unknown to the general framework of Courts of Common Law and Equity,” if any proceedings can be. They are commenced by petition, and not by complaint and summons. Ho summons or other process is issued, but in their place a notice is published for all persons interested to come in and participate; and all the other steps are calculated to dispose of the matter in a summary way, and with the least delay and expense. In these respects they are substantially identical with the proceedings in insolvency. The right and the remedy are peculiar, and we can-conceive of no case that could be considered “ special,” if this is not.