Bartlett v. Superior Court

NOURSE, P. J.

This is an original application to prohibit the Superior Court, sitting in Marin County, from hearing a proceeding in

habeas corpus

directed to the petitioner at his home in Pasadena, Los Angeles County, to determine the custody of his two minor children who were living with him at the time in the latter county. Prohibition is sought on the theory that the Superior Court in Marin County is without jurisdiction to bring petitioner or the children from another county to answer before the court in Marin.

The jurisdiction of the superior court is found in section 5 of article VI of the Constitution, which reads in

[757]

part: “Said courts, and their judges, shall have power to issue writs of

mandamus, certiorari,

prohibition,

quo warranto,

and

habeas corpus,

on petition by or on behalf of any person in actual custody, in their respective counties.” This is the wording of the section as amended in 1911. The original section contained the same language but omitted the comma after the word “custody”.

In passing on the question of jurisdiction in

mandamus

the Supreme Court, in

Kings County

v.

Johnson,

104 Cal. 198, 203 [37 Pac. 870], held that the superior court, under this section, could issue a writ of

mandamus

to run out of the county. In so holding, the Supreme Court commented on the absence of a comma or other punctuation as indicating the intention not to limit the jurisdiction of the superior court in this respect.