Butler v. Superior Court

CONREY, P. J.

— This is an application “for a writ of review and a writ of

mandamus,”

and particularly, to compel the court to proceed in an action of divorce wherein the court has made an order dismissing the action.

It would appear that the petitioner is not entitled to a writ of review, since she had a right of appeal. The petition shows that she did give notice of appeal, but that through some mistake or inadvertence she failed to perfect that appeal within the time allowed by law. I fail to discover anything in the cases cited in petitioner’s memorandum of authorities, sufficient to sustain Mr. Clark’s claim that in such cases as this a writ of review will be granted after the right of appeal has been thus lost. The decisions are definitely to the effect that in any case where the law gives the right of appeal from the order sought to be reviewed, a writ of review will not issue. The case of

Golden Gate Tile Co.

v.

Superior Court,

159 Cal. 474 [114 Pac. 978], which seems to be the leading authority relied upon by petitioner, was a case originating in a justice’s court, wherein, of course, there was no right of appeal from the judgment rendered by the superior court dismissing the appeal of the cause to that court.

[324]

I am also inclined to the opinion that a writ of mandate should not issue in this case. It is true that in a certain line of cases where courts have dismissed actions and have declined to proceed with the trial thereof, and where the ground of such ruling by the court was that the court did not have jurisdiction of the action or appeal, and where the higher court determined that the lower court did have such jurisdiction, the writ of mandate has issued to compel the court to resume its jurisdiction and proceed with the action on its merits..

I am not at all sure that the petition herein shows that the superior court in dismissing the action of

Butler