Cunnyngham v. Justice's Court

THE COURT.

Petitioner has applied for a writ of

certiorari

to review and annul a judgment rendered by the Justice’s Court of Brooklyn Township, County of Alameda, in an action in ejectment instituted and tried therein. The application is based upon the ground that said court exceeded its jurisdiction in hearing and determining said proceeding.

Section 1068 of the Code of Civil Procedure provides that such a writ “may be granted . . . when an inferior tribunal . . . has exceeded the jurisdiction of such tribunal . . . and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy”. . And in dealing with the power conferred by said code section it has been uniformly held that even though a tribunal be without jurisdiction to render the alleged invalid judgment, if such judgment be appealable,

certiorari

will not lie, because under said code section it lies only where “there is no appeal”.

(Stoddard

v.

Superior Court,

108 Cal. 303 [41 Pac. 278];

Stuttmeister

v.

Superior Court,

71 Cal. 322 [12 Pac. 270];

Helbush

v.

Superior Court,

99 Cal. App. 501 [278 Pac. 1062];

Hughson

v.

Superior Court,

120 Cal. App. 658 [8 Pac. (2d) 227].) In the present case petitioner is afforded an ample remedy by appeal to the superior court.

Moreover, and in any event, it appears from the petition herein that no application was made in the first instance to the superior court for the issuance of said writ (Rule XXVI for the Supreme Court and District Courts

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