Lavore v. Industrial Accident Commission

CRAIL, P. J.

This case comes before us on the motion of petitioner to strike from our files the answer to her petition for a writ of review and the answer to her supplemental petition for a writ of review and that we forthwith issue a writ of review as prayed.

The contention of the petitioner is that the question whether the writ should issue is, in the absence of extraordinary circumstances, to be determined by reference to her petition, and that if her petition makes a

prima facie

case

[257]

for

certiorari

the writ will issue, and that Rule XXVI, section 4, of the Rules for the Supreme Court and District Courts of Appeal is unconstitutional and void if any construction of said rule is made inconsistent with her foregoing right for the reason that acts necessary to give jurisdiction as specified in an act of the legislature cannot be added to or limited by a rule of court, citing section 129 of the Code of Civil Procedure and

Helbush

v.

Helbush,

209 Cal. 758 [290 Pac. 18], The rule against which petitioner contends reads as follows:

“Industrial Accident Commission Cases—When an application is made to the Supreme Court or a District Court of Appeal for a writ of

certiorari,

to review an order or award of the Industrial Accident Commission, the application shall be accompanied by proof of service of a copy thereof upon the Industrial Accident Commission.

“Such application, if based upon a want of evidence sufficient to warrant the conclusion of the Commission, must fairly state all the material evidence relative to the point as to which such want of evidence is claimed to exist.

“The Commission may, within ten days after such service upon it of such copy, serve upon the applicant and file in such court, an answer, which shall be limited to a brief statement of the grounds of the order or award, and to the supplying of any evidence omitted or misstated in the application. If any such answer be served and filed, the petitioner may within five days thereafter serve and file a reply to such answer.”