Hayes v. First Judicial District Court

De Witt, J. We note the following authorities: An order discharging a defendant from imprisonment is a special order made after a final judgment. (Wells, Fargo & Co. v. Anthony, 35 Cal. 696.) In proceedings supplemental to execution an order to apply specific property to the satisfaction of a judgment is appealable. (McCullough v. Clark, 41 Cal. 303.) This view may be obiter in the opinion, but, as it is stated as a proposition “ too plain for argument,” we have a positive expression of the view of the California Supreme Court upon the subject. In Sperling v. Calfee, 7 Mont. 514, an appeal was taken from an order made in proceedings supplemental to execution, requiring certain persons to appear and answer concerning certain [227] property. The appealability of the order was taken for granted, and was not discussed. In Barber v. Briscoe, 9 Mont. 347, the court remarks that an order denying a motion to set aside an order for the examination of the defendant is appealable. So the tendency of the authority, we observe, is to the effect that these orders, made in proceedings supplemental to execution, are appealable. Counsel for petitioner cite Foster v. Prince, 8 Abb. Pr. 407, and Joyce v. Holbrook, 7 Abb. Pr. 338, but neither of these cases review a provision of the statute allowing an appeal from a special order made after final judgment, and the former of the cases went upon the ground that the party complaining was not aggrieved. In the matter before us the order complained of was made after final judgment. If sections 421 and 444, as cited, do not refer to such an order as the one in question, we would be wholly at a loss to define the application of that law. We are of opinion that an appeal lies in this matter, and it is accordingly ordered that the application for a writ of certiorari be denied. Writ denied. Blake, C. J., and Harwood, J., concur.