Sherman v. Rolberg.

Attorney-General for Respondent.

BURNETT, J., delivered the opinion of the Court-FIELD, J., concurring.

The defendant was convicted of grand larceny. The only error assigned is that the testimony did not justify the verdict. The rule is well settled that where there is no legal testimony to sustain the verdict, it will be set aside; but where the testimony is conflicting, or where the credibility of witnesses must be passed upon, it is a matter solely for the jury to determine. In this case, we think the jury might have found the defendant guilty or not guilty, and the Court would not have been justified in granting a new trial.

Judgment affirmed.

SHERMAN v. ROLBERG.

Where a party appealed from a Justice's Court to a County Court, and the justice neglected to send up with the record the notice of appeal: Held, that it was error to refuse to allow appellant the opportunity of moving to compel the justice to send it up, by peremptorily dismissing the appeal.

APPEAL from the County Court of Colusa County.

The facts of this case appear in the opinion of the Court.

Crocker, McKune & Robinson, for Appellant. Where both parties appear on appeal in the County Court, no notice of appeal is necessary. McLeran v. Shartzer, 5 Cal. R., 70.

L. Sanders for Respondent.

There is nothing to show that the County Court had jurisdiction of the appeal; for the reason that the statement of the case does not show that notice of appeal was served upon respondent appealing from the judgment alleged to have been rendered on the fourth day of July, 1857. The notice served did not state the amount of the judgment appealed from.

This case differs from the case in the fifth volume of California Reports, relied on by appellants. In that case, the parties appeared to the action and argued a motion for a continuance. In this case, the respondent appeared specially as to the question of notice, and hence the County Court properly dismissed the appeal

The notice of a judgment rendered on the fourth day of July is no notice, because no Court can judicially sit on that day.

Fremont v. Merced Mining Company.

BURNETT, J., delivered the opinion of the Court-TERRY, C. J., concurring.

Action before justice of the peace. Judgment for plaintiff. Appeal to the County Court, where the appeal was dismissed, and the judgment of the justice affirmed. Appeal by defendant

to this Court.

The judgment was rendered in the Justice's Court, on the second day of July, 1857. Notice of the appeal was handed to the Justice on the sixth of July, and on the same day notice of appeal was served on the attorney of plaintiff. This notice described the parties to the suit and the justice before whom it was obtained, but stated that the appeal was taken from a judgment rendered on the fourth day of July. The notice given to the justice described the judgment correctly. The justice sent up a copy of his docket and the papers, except the notice. The appeal was taken on questions both of law and fact.

When the case was called in the County Court, both parties appeared, and each asked liberty to make a motion. The plaintiff's counsel was allowed to make his motion first, and moved to dismiss the appeal and affirm the judgment of the justice, for two reasons: first, there was no notice of appeal on file; second, there was no notice of appeal served on defendant.

The mistake in the date of the judgment, as stated in the notice of appeal which was served on respondent, was not material. The notice was sufficient. It was the duty of the justice to send up the notice of appeal received by him. Code, § 627. The County Court should have given the appellant the opportunity to move for an order compelling the justice to send it up. $ 627.

The order of the County Court dismissing the appeal and affirming the judgment of the justice is reversed, and that Court will proceed to try the case anew.

FREMONT v. MERCED MINING COMPANY.

When an injunction, granted on an ex parte application, was modified on motion of defendant, without notice to plaintiff, on defendants' giving bond: Held, that subsequent acts of defendant, in violation of the original injunction, were not in contempt. The remedy of the plaintiff, if there was error in the order modifying the injunction, is by appeal, but he cannot have a mandamus to compel the issuance of attachment for contempt.

MANDAMUS.

Application to this Court for a mandamus to compel the District Court to issue an attachment for contempt. The facts appear in the opinion of the Court.

People v. Judge of Tenth Judicial District.

Heydenfeldt for Plaintiff.

BURNETT, J., delivered the opinion of the Court-TERRY, C. J., concurring.

Application for mandamus. The plaintiff commenced his action in the District Court of the Thirteenth Judicial District, and upon his ex parte application, an order was made by the Judge granting an injunction restraining the defendant from working certain quartz-veins. After due service of the injunction, the defendant, without notice to the plaintiff, applied for a modification of the order, which was granted by the Judge, upon the filing of a bond by defendant in a sum specified. After the order was made modifying the order granting the injunction, the defendant went on to work the quartz-veins mentioned, and the plaintiff, upon the proper affidavit, made application to the Judge for an attachment for contempt. This application was refused, and the plaintiff now applies to this Court for a mandamus to compel the Judge of the Court below to issue the attachment, and hear the case of the alleged contempt.

The Judge very properly refused the application for the attachment. The order granting the injuction having been modified, there was no contempt committed. The Judge had a right to modify the order, under the provisions of section three hundred and thirty-four of the Practice Act. 8 How. Pr. R., 440. If the Judge erred in making the order, the remedy of the plaintiff was by appeal. § 347. Application denied.

THE PEOPLE ex rel. JOHN GALVIN v. THE JUDGE OF THE TENTH JUDICIAL DISTRICT.

In an application for a mandamus to compel a District Judge to sign a bill of exceptions, which the relator alleges he refuses to do, and where the District Judge, in his answer, avers that he has signed a true bill of exceptions, and that the one presented by relator is not a true bill: Held, that the relator is not entitled to a jury to try the issue, under section four hundred and seventy-two of the Practice Act. Courts of such extended jurisdiction and grave responsibility must, from the very nature of the case, be trusted as to the fidelity of their records, and their decision thereon is final and conclusive.

MANDAMUS.

This was an application to this Court for a writ of mandamus, against the Judge of the Tenth Judicial District, to compel him to sign a bill of exceptions.

Rowe & Mott for Plaintiff.

People v. Judge of Tenth Judicial District.

Thos. H. Williams, Attorney-General, for Respondent.

BURNETT, J., delivered the opinion of the Court-TERRY, C. J., concurring.

Application for mandamus. The relator was convicted of murder in the first degree, and sentenced to be executed. From the judgment of the Court below, he appealed to this Court. He presented to the Judge of the District Court what he alleges was a true bill of exceptions, which the Judge refused to sign. The Judge, in his answer, states that he did sign a bill of exceptions which was, according to his best recollection and belief, correct; and he still believes the same to be correct and true in every particular; and that he could not conscientiously alter or change the same. The relator, under this state of the case, claims the right to have this issue of fact tried by a jury, under the provisions of the four hundred and seventy-second section of the Practice Act.

Under the Constitution of this State, this Court has appellate jurisdiction "in all criminal cases amounting to felony, on ques

tions of law alone."

The proposed question is simply a question of fact and not of law. The Judge alleges he did sign a true bill of exceptions, and the relator traverses this allegation. How, then, can this Court, having only appellate jurisdiction on questions of law, proceed to try a disputed question of fact?

In answer to this view, it is substantially maintained by the counsel of the relator, that this Court is not asked to try the issue of fact, or to exercise any original jurisdiction, but simply to employ its superintending power to compel a true history of the proceedings of the Court below to be sent up to this Court. And as this Court could not say to the District Judge, "you must sign the particular bill of exceptions," the only remedy given the defendant, is that found in section four hundred and seventytwo, allowing a jury to try the issue of fact.

The real question presented is, whether the record of the District Court can be corrected by the verdict of a jury. The object of a bill of exceptions, as well stated by the counsel of the relator, "is to make that record which before was not record." The Judge having signed a bill of exceptions, it became a part of the record in the case, and the only effect of the verdict of the jury, if different, would be to correct the record.

The power to determine every issue between parties, must be placed somewhere. There must be an end of controversies, or the system must fail to accomplish the very object intended. The District Courts are Courts of original jurisdiction, of the highest order known to our Constitution. They are Courts of grave dignity, and are required to keep a record of all their proceedings; and after they have assumed to do so, can their rec

Kritzer v. Mills.

ords be corrected by any other power known to our law? The proceedings are known to these Courts, because they take place in their presence. Can a jury be called in to decide as to what occurred in the presence of the Court? Juries are used as instruments, to determine facts unknown to the Courts. But a Court does not require the verdict of a jury to inform it of facts occurring in the presence of the Court itself. Courts of such extended jurisdiction and grave responsibility as the District Courts must, from the very nature of the case, be trusted as to the fidelity of their own records. It would destroy all confidence in the verity of the records of these Courts, were the rule once laid down that their truth could be questioned. We should soon be called upon to direct issues of fact to be tried by a jury, as to whether the statements settled by District Judges, in civil cases, contained the whole truth, or otherwise. Every criminal convicted of murder in the first degree, could readily procure a lengthened stay of execution, by raising an issue of fact with the District Judge. It is true that the language of the four hundred and seventysecond section is general, and would seem to include all cases where there was an issue of fact raised by the return to the alternative writ. But this general language only applies to proper cases. It could not have been the intention of the Legislature to give such an extraordinary power to juries as that claimed by the relator.

The relator may be without any judicial remedy. But this is the case with persons who are convicted by the verdict of a jury, when innocent. If the alleged error in the proceedings of the Court related to a mere legal question, not going so much to the merits of the case, then the relator is not so much injured as to justify a departure from the salutary principles of the law. But if, on the other hand, he was convicted when innocent, his remedy must be sought in the pardoning power of the Executive. We consider the application in this case as novel, and without precedent. We, therefore, have no hesitation in denying it.

KRITZER v. MILLS et al.

Where a promissory note is signed by two persons in the same manner, with nothing on the face of the note to show that one was merely a surety, he cannot set up in defence that he was such, and that the plaintiff had not sued in due time, and had given no notice of demand and protest.

APPEAL from the District Court of the Fifth Judicial District.

This was a suit commenced on the following promissory note: