Wells v. Torrance

HAYNES, C. Petition for a writ of prohibition to restrain the respondent, as judge of the superior court, from proceeding to entertain an appeal from an order made in the justice’s court under proceedings supplementary to execution. Wells, the petitioner, obtained a judgment against one Sidney Selover before a justice of the peace, execution was issued upon the judgment, and thereafter proceedings were duly taken for the examination of the judgment debtor under proceedings supplementary to execution, and an order was made therein against the defendant, requiring him to pay to the constable holding the execution the sum of forty-three dollars and fifty cents, that being one-half of the total sum of eighty-seven dollars, which last sum said justice found, as a matter of fact, was in the possession and under the control of said Selover at the time the order for his examination was served. ' Within thirty days after the making of said order Selover appealed therefrom to the superior court upon questions of both law and fact. Petitioner appeared specially in the superior court and moved to dismiss said appeal, on the ground that the superior court had no jurisdiction. Said motion was overruled by the court, and said appeal was set down for trial, and the petitioner asks that said superior court be prohibited from proceeding therein. The question involved is whether an appeal lies to the superior court from such an order.

Section 4 of article IV of the constitution fixes the appellate jurisdiction of the supreme court, but, by the following section, the appellate jurisdiction of the superior court is left wholly to the discretion of the legislature. No appellate jurisdiction is given to the superior courts by the constitution, but the legislature is permitted to give it such appellate jurisdiction as it may see proper.

Title 13 of the Code of Civil Procedure is devoted to appeals in civil actions. Chapter I of said title treats of appeals in general. chapter II of appeals to the supreme court, and chapter III of appeals to superior courts.

[439]Section 936, the first section relating to appeals in general, provides: “A judgment or order, in a civil action, except when expressly made final by this code, may be reviewed as prescribed in this title, and not otherwise.” The final section of this chapter, however (section 959), declares that “the provisions of this ■chapter do not apply to appeals to. superior courts.” Section 963, the first section of chapter II, entitled, “Of appeals to the supreme court,” provides, among other things, for an appeal from any special order made after final judgment; but section 964 declares that the foregoing section does not apply in cases appealed from justices’, police, or other inferior courts, except in certain specified cases, of which the case before us is not one.