Willoughby v. George
| Decision Date | 01 December 1877 |
| Citation | 4 Colo. 22 |
| Parties | WILLOUGHBY v. GEORGE. |
| Court | Colorado Supreme Court |
Error to District Court of Jefferson County.
MOTION to quash writ of error.
Mr. J. W. HORNER, for plaintiff in error.
Mr. THOMAS GEORGE, pro se.
The judgment in this case was rendered after the Code went into effect.
A writ of error is a new suit. Filley v. Cody, 3 Col. 221, and cases cited.
The case does not therefore come within the saving clause of section 447 of the Code.
Section 335 of the Code provides 'a judgment or order in a civil action, except when expressly made final, may be reviewed by appeal as prescribed by this act and not otherwise.'
The phrase, 'except when expressly made final,' is peculiar and has given rise to doubts, as to whether the section ought not to be held to apply to interlocutory judgments and orders only. By reference, however, to section 333 of the California Code, of which our Code is largely a transcript, we find substantially, and almost in language the same provision, except that the phrase there reads, 'except when expressly made final by this Code.' Harston's Prac., s 936.
As the phrase is still susceptible of the same construction as if the omitted words had been adopted, we do not feel authorized to say that their omission was with the design of changing or limiting the force or effect of the section as it existed in the Code from which it was adopted. The exception then is of judgments and orders which under the law are not reviewable by any mode.
In this view the provision is plain and positive, and under it, in the case of judgments rendered after the Code went into effect, the remedy is by appeal and not otherwise. Haight v. Gray, 8 Cal. 300.
If it is possible for a case to occur not falling within the cases prescribed in the act as appealable, in such a case a different view might be taken.
The writ of error does not lie. The Constitution saves the writ to the county court only.
The motion to quash is sustained.
Motion sustained.
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Ex parte France
...Dall. 327, 1 L. Ed. 619; Ex parte Thistleton, 52 Cal. 220; Langworthy v. Baker, 23 Ill. Orig. Ed. 484 (Freeman & Gross Ed. 430); Willoughby v. George, 4 Colo. 22. It has been held that the writ cannot be abolished by the Legislature, where the powerto issue it is by the Constitution vested ......
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Ex parte France
... ... 321, 1 ... L.Ed. 619; Ex parte Thistleton (1877), 52 Cal. 220; ... Unknown Heirs, etc., v. Baker (1860), 23 ... Ill. 430; Willoughby v. George (1877), 4 ... Colo. 22 ... It has ... been held that the writ cannot be abolished by the ... legislature, where ... ...
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Bealmear v. Beeson
...by 'A Writ of Error is considered as a new action, * * *'. Roberts v. Fahs, 32 Ill. 474; Garrett & Bibb v. Terry, 33 Ala. 514; Willoughby v. George, 4 Colo. 22. The filing of notice of appeal is not the commencement of 'a new action' in this state. It follows that this court cannot dismiss ......
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Jenson v. Frazer
... ... 471, 27 P. 1055; Smith v ... District Ct. 4 Colo. 235; Harrison v. Smith, 2 ... Colo. 625; 1 Am. & Eng. Enc. Law, p. 623; Willoughby v ... George, 4 Colo. 22; Stebbins v. Anthony, 5 ... Colo. 273; Webster v. Gaff, 6 Colo. 475 ... ... [21 ... ...