Burson v. Cowles

By the Court, Sanderson, C. J. This is an application for a writ of prohibition to be directed to the Hon. Samuel Cowles, County Judge of the City and County of San Francisco, commanding him to desist from all further proceedings in a certain suit taken to Ms Court by appeal from a Justice’s Court, on the ground that no appeal is given by law in the action in question. The action referred to was brought by Burson to recover of the Omnibus Railroad Company the sum of two hundred dollars for alleged ovércharges, pursuant to the provisions of the Act of the 14th of April, 1863, concerning street railroads in this State. (Statutes 1863, p. S96.) The only question involved in the case is as to whether an appeal in such an action is allowed, from the judgment of the Justice’s Court to the County Court.

It is claimed on the part of the petitioner that the judgment of the Justice’s Court is a final judgment, from which there is no appeal; and in support of this proposition it is argued that the action authorized by the provisions of the Act in question is not an ordinary civil action, in which the method of procedure is found in the Practice Act, but, on the contrary, that it is a proceeding in its character summary and governed solely by the provisions of the statute creating it, and hence, no appeal being given in terms, the right tó an appeal does not exist.

The Act in question provides a penalty for overcharging in the sum of two hundred dollars, and that it may be recovered in a civil action in any Justice’s Court in the county, or in the city and county, as the case may be, in which the street railroad is situated. Beyond the words “ civil action ” the Act contains no terms descriptive of the nature and character of the proceeding authorized by its provisions. The words “ civil action’’ are not restricted or qualified in any manner. No mode of issuing or serving summons is prescribed. No provision for a trial or the other various steps incident to an action is made. On the contrary, the Act is entirely silent upon the mere mode of procedure except in so far as the same is im[538]ported by the term “ civil action j” and we fail to find in the Act any provision which at all distinguishes the “civil action” therein mentioned from any other civil action. The clause making the plaintiff in the action a competent witness, in his own behalf, in no respect can be said to affect the mode of procedure; but if it did, it would not distinguish it from the mode adopted in other civil actions, for the same provision existed in the Practice Act at the time the Act in question became law. The same is true of the clause which directs the distribution and payment of the judgment when collected. (Section 633 of the Practice Act.)