SHENK, J.—I dissent. The denial of the relief sought by the petitioner in this case is neither required nor justified under the laws of this state. The order of the trial court was clearly in excess of jurisdiction and resulted in a palpable injustice to the petitioner for reasons for which he was in no way responsible.
It will be recalled that the petitioner sought to review and annul an order granting a motion to dismiss his complaint, [380]that he had no notice of such order until the time for appeal therefrom had expired. In like circumstances appearing in other cases in this state certiorari has properly been held to lie as an exception to the strict application of the law in order to obtain the writ.
The court in this case condones the making of an order at chambers in an unauthorized manner. The trial judge, in chambers, orally instructed the clerk to enter the order without the formality of a writing signed by the judge. Section 166 of the Code of Civil Procedure provides for the manner of making orders at chambers as follows:
“The judge or judges of the superior, municipal and justice courts may, at chambers, in the matters within the jurisdiction of their respective courts:
“1. Grant all orders and writs which are usually granted in the first instance upon an ex parte application, and may, at chambers, hear and dispose of such orders and writs. . . .
“2. Hear and determine all motions made pursuant to Sections 657 [new trial] or 663 [vacation and entry of other judgment] of this code;
“3. Hear and determine all uncontested actions, proceedings, demurrers, motions, petitions, applications, and other matters pending before the court. ...”
The present order of dismissal is not authorized by any provision of section 166. It is not an order made on an ex parte application, as provided for in subsection 1, nor is it an uneontested action, as provided for in subsection 3. Subsection 2 deals with matters not here involved.
In United Railroads v. Superior Court (1925), 197 Cal. 687 [242 P. 701], the issue before the court was whether an order granting a new trial could be made outside of court. At that time section 166 did not provide, as it does now, for the making of such an order at chambers. The order involved in that case, unlike that here involved, was a formal "written order duly signed and filed by the judge. In rejecting the contention that the judge could make an effective order only by a pronouncement from the bench in open court in the presence of the parties, and in holding that the judge had the authority to make an effective order in the absence of the parties or their counsel in the manner employed, the court stated: “We are of the opinion that, when all of the elements antecedent to such an order have been duly performed and when the issue after a hearing thereon duly has been submitted to the court for its decision, the order of the court [381]thereon may be rendered in either one of two ways: (1) By the pronouncement thereof in open court in the manner above suggested [an oral pronouncement from the bench]; or (2) by the filing with the clerk in the action of a written order of court signed by the judge. Of course, when the latter method is followed the signing of the order by the judge does not constitute its rendition. ... It is the filing of the written order authenticated by the signature of the judge which constitutes the rendition thereof.” (See also Barnett Rosenburg, Inc. v. Superior Court, 93 Cal.App. 276 [269 P. 730].)
After the decision in the United Railroads case section 166 was amended to make specific provision for the making of orders in chambers upon motions for a new trial. (Stats. 1929, p. 850.) However, what the court there said as to making of orders not provided for in section 166 would not appear to be affected by the statutory change. (See Hackel v. Los Angeles Ry. Corp., 31 Cal.App.2d 228 [88 P.2d 178].) The order was not made in either of the two modes authorized and was in excess of the court’s jurisdiction and void.
The court holds that the United Railroads case is not controlling because subsequent decisions cited such as Dempsey v. Market Street Ry. Co., 23 Cal.2d 110 [142 P.2d 929] ; Gossman v. Gossman, 52 Cal.App.2d 184 [126 P.2d 178]; Cox v. Tyrone Power Enterprises, Inc., 49 Cal.App.2d 383 [121 P.2d 829], and Hackel v. Los Angeles Ry. Corp., supra, 31 Cal.App.2d 228, have assertedly overruled it. But such is not the case. It is contended that those cases hold that when the court orders the clerk to enter a minute order, the order so entered in the minutes is a written order of the court, and no formal writing signed by the judge and filed with the clerk is necessary. But those cases do not purport to pertain to orders made in chambers, as in the present case. Insofar as appears from the opinions in the Dempsey, Gossman and Cox cases, an order was made in the usual manner in open court granting a new trial on the ground of the insufficiency of the evidence, and the clerk entered the order in written form in the minute book. The question raised in each of these cases was whether such procedure satisfied the requirements of section 657 of the Code of Civil Procedure which states in part: “When a new trial is granted, on all or part of the issues, upon the ground of the insufficiency of the evidence to sustain the verdict or decision, the order shall so specify this in writing. ...” The court held in each case that the statute did not require a written order signed by [382]the judge and filed with the clerk, hut that the minute entry by the clerk was sufficient. Those cases are in no way inconsistent with the rule in the United Railroads case. That case conceded the validity of an oral pronouncement made in open court in the presence of counsel, and was concerned only with the manner of making an order at chambers.
The court’s reliance on the Hackel case is even less justified. In that ease an order granting a motion for a new trial made at chambers was affirmed on the ground that such an order was one authorized by section 166. In referring to the United Railroads ease the court in the Hackel case stated: “Appellants contend that a decision on a motion for a new trial can be rendered in only one of two ways: (1) By audible pronouncement in open court; or, (2) By the filing with the clerk in the action of a written order, signed by the judge. The ease of United Railroads v. Superior Court, 197 Cal. 687 [242 P. 701], appears to be authority for the rule above stated. However, since the date of the rendition of the decision last cited, sections 166 and 167 of the Code of Civil Procedure have been amended . . .” to provide for the making of an order on a motion for a new trial at chambers. The reliance of the court on the cases above referred to cannot be justified.
Prom the foregoing it must be apparent that the order here was not authorized by section 166 as one which may be made at chambers. The court does not seek to justify the order under section 166, apparently conceding the lack of authority for the order under that section by the remark in the footnote that section 166 is inapplicable. However, it is apparent from the court’s recital of facts that the order was made at chambers, and it therefore must be concluded that it is the court’s present intention to provide by judicial legislation a further instance wherein a judge may make an order at chambers in addition to those instances set forth in section 166 and obviously intended by the Legislature to be exclusive.
Obviously the court acted in an unauthorized manner in making its order and the order was therefore void. But the petitioner nevertheless has no right to appeal from the order, having lost it by the running of time in which to appeal. The petitioner’s theory of his right to certiorari is that the respondent court “has exceeded the jurisdiction of such tribunal . . . and there is no appeal, nor . . . any plain, speedy and adequate remedy.” (Code Civ. Proc., § 1068.) Having had an appeal available and lost it through the running of the time within which to appeal would appear, at first [383]glance, to require that certiorari would not lie. It does not appear from the decided cases, however, that certiorari will be lost to the aggrieved party in all cases where he loses his right of appeal due to the lack of notice of entry of the judgment and the running of the time within which to appeal. In Elder v. Justice’s Court (1902), 136 Cal. 364 [68 P. 1022], the court had before it an application in certiorari wherein the act in excess of jurisdiction was a failure to give statutory notice of time and place of -trial. Such a notice was held to be jurisdictional. That judgment was nevertheless appealable but no appeal was taken within time. Contrary to a general application of the statutory requirements for certiorari the court held that certiorari was a proper remedy. The circumstances of that case must be deemed to justify an exception to the rule that there be no appeal available before certiorari can be resorted to.
This exception was followed in Grinbaum, v. Superior Court (1923), 192 Cal. 528 [221 P. 635]. The act in excess of jurisdiction which made the order or judgment void was a failure to give antecedent statutory notice of the proceedings to adjudge one to be an incompetent. The order so adjudging her was appealable but no appeal was taken. After the time for appeal had run certiorari was held to be a proper remedy.
In each of the foregoing eases there was no statutory requirement that notice of entry of the order or judgment be given and the time for appeal had run before the aggrieved party had notice of such entry. These cases recognized that the general rule is relaxed where the opportunity to appeal was lost by reason of lack of knowledge or notice of the void judgment or order, without fault on the part of the aggrieved party.
The exception applied in the Elder and Grinbaum cases has been applied in later and different situations. In Lee v. Small Claims Court, 34 Cal.App.2d 1 [92 P.2d 937], the defendant in a small claims court action had notice of the proceedings and appeared and defended. A judgment adverse to him was entered but he did not receive notice thereof until after time for appeal had expired. The court held that certiorari would lie. To the same effect see O’Kuna v. Small Claims Court, 81 Cal.App. 588 [254 P. 291], wherein the court stated that “An exception to the rule that certiorari cannot be resorted to after time for appeal has expired, may be found in instances where no notice of judgment has been had until after such time has elapsed.” In both the Lee and [384]O ’Kuna cases the court relied on the Elder case. (See also McCue v. Superior Court, 71 Cal. 545 [12 P. 615]; Kimple v. Superior Court, 66 Cal. 136 [4 P. 1149]; Reynolds v. Superior Court, 64 Cal. 372 [28 P. 121].)
The majority evidently recognize that there is an exception to the strict application of section 1068, but they would not apply the exception in the present case because of purported distinctions from those cases where it has been applied. But it is not possible to distinguish the Lee and 0 ’Kuna cases. In those cases, as in the present ease, the aggrieved party had notice of the proceedings and of the fact that an order or judgment was forthcoming. Yet they made no inquiries when they received no notice of judgment until after time for appeal had expired. The fact that shorter periods of times were involved in which to take an appeal in those cases should have made them all the more vigilant and less entitled to certiorari than the petitioner in the present case.
The exception to the statutory requirement that there be no appeal available is founded on equitable principles. Certiorari is an ancient and extraordinary writ growing out of the English Court of Chancery where, in reflecting the conscience of the sovereign equitable principles were applied. (See Appellate Review in California with the Extraordinary Writs, 36 Cal.L.Rev. 75, 78.) It was brought into this state in the Constitution of 1849 by providing therein that the Supreme Court “shall have power to issue all other writs necessary to the exercise of [its] appellate jurisdiction. . . .” (Const., art VI, § 4.) This power was made specific by amendment of the same section in 1862 and was incorporated in the same numbered section in the Constitution of 1879. The application of certiorari has often been tempered by equitable considerations. (Smith v. Superior Court, 97 Cal. 348 [32 P. 322]; Estate of Glassgold, 97 Cal.App.2d 859 [218 P.2d 1016]; Swars v. Council of the City of Vallejo, 64 Cal.App.2d 858 [149 P.2d 397].)
In the present case the principles of justice and equity may best be served by bringing the petitioner within the exception to the general rule.
The order should be annulled.
Schauer, J., concurred.
Petitioner’s application for a rehearing was denied July 22, 1959. Shenk, J., and Schauer, J., were of the opinion that the application should be granted.