40 Cal. 183, 2,176, Bates v. Gage

Docket Nº:2,176
Citation:40 Cal. 183
Opinion Judge:TEMPLE, Judge
Party Name:HARKWELL BATES, Respondent, v. O. C. GAGE, Appellant
Attorney:W. L. Dudley, for Appellant. J. H. Budd, G. F. Martin, F. T. Baldwin, and J. G. Jenkins, for Respondent.
Judge Panel:JUDGES: Temple, J., delivered the opinion of the Court.
Case Date:October 01, 1870
Court:Supreme Court of California

Page 183

40 Cal. 183



O. C. GAGE, Appellant

No. 2,176

Supreme Court of California

October, 1870

Appeal from the District Court of the Fifth District, San Joaquin County.


W. L. Dudley, for Appellant.

The Court had no jurisdiction over this case for the purpose of a trial on the 16th day of November, 1868.

There was no Court at the time this trial was had--no legal jury, no legal proceedings of any character whatever. The term expired for San Joaquin County, two days before the trial of this cause. It was tried on the day that the term of the Court commenced in Tuolumne County; and while it is true that the parties, as well as their attorneys, entered into a written stipulation to try the cause on the 16th of November, 1868, and actually appeared, and went through all the forms of a trial, that did not, nor could it give jurisdiction for the very good reason that jurisdiction cannot be conferred by any act or acts of parties to a tribunal, otherwise possessing none. Consent of litigants cannot create a Court. Therefore the stipulation signed by the parties and attorneys in this case, did not authorize the Judge to try the cause at the time the parties appeared beforehim. (Hicks v. Ludwig, 9 Cal. 173; Smith v. Chichester, 1 Cal. 409; Norwood v. Kenfield, 34 Cal. 329; Day v. Waggoner, 3 Texas 515; Germand v. The People, 1 Hill 343.)

J. H. Budd, G. F. Martin, F. T. Baldwin, and J. G. Jenkins, for Respondent.

The attempt has been made in former cases to avoid the effect of stipulation, but without avail. (Cahoon v. Levy, 10 Cal. 216; Glosback v. Foster, 11 Cal. 37; Bowen v. Hickman, 29 Cal. 460.

It is true that a Court cannot commence a session at any time not authorized by law, but it may continue a session regularly begun after the time for commencing a term in another county, and must continue until the business is finished, or until the time for commencing a term in another county. We think provision is made for continuing a session after the time for the commencement of a term in another county, from the fact that the Sheriff is authorized to adjourn the Court from day to day, for a week, if the Judge does not appear to preside. The purpose of this we understand to be that the Court may close any business which is pressing at the session then in progress.

JUDGES: Temple, J.,...

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