In Re Gough

STURTEVANT, J.

This is an appeal by the people of the state of California from an order granting* a petition for a writ of

habeas corpus

and the discharge of the petitioner. The petitioner makes a preliminary objection in the form of a motion to dismiss the appeal.

The application for a writ of

habeas corpus

was presented to the superior court of this state in and for the county of Marin. The petitioner was represented by his attorney Mr. Califro. The people of the state of California were represented by Mr. Greer, the district attorney of Marin County. The people were the only respondents and Mr. Greer did not represent anyone else. When the trial court announced its judgment granting the application and ordering the petitioner discharged, Mr. Greer, as recited in the minutes, announced in open court that “an appeal is taken at this time”. The record does not show that he specially designated his client by name. Assuming, without deciding, that he should have done so, we may not presume that he did not perform his official duty. (Code Civ.

[495]

Proc., sec. 1963, subd. 15.) It follows that the appeal was taken by the people of the state of California.

Later a document headed ‘ ‘ Specifications of Grounds of Appeal”, was filed in the trial court. The petitioner makes several attacks thereon, claiming it does not comply with rule II, section 7, of the Judicial Council. We understand the petitioner to refer to Rules for the Supreme and District Courts of Appeal. The petitioner does not quote and we have not found any passage in said section addressed to appeals in

habeas corpus

proceedings. True it is that the section refers to orders “made after judgment”. However, from the context it appears that the passage refers to orders made after judgment in the original action and does not refer to orders made in a collateral proceeding. On the other hand, if we assume for the purposes of this decision that rule II, section 7, is pertinent to this case, the result is the same. The “specifications” opens with the expression “Now comes the respondent, James B. Holohan, warden of the California State Prison at San Quentin . . . ” The petitioner quotes the expression and thereupon he states that the warden is not the respondent and that the statute does not give the warden the right to appeal. The point may not be sustained, for it is patent that the respondent appealed and that the words “James B. Holohan, warden of the California State Prison at San Quentin” were surplus-age, but surplusage does not vitiate. The other attacks made on the specifications are merely stated by the petitioner, no argument in support of them is made and no authorities whatever are cited. Therefore we pass to a consideration of the application on its merits.