Lapique v. Superior Court

SHAW, J.

It appears from the petition that in December, 1913, Lapique, as the assignee of an unsatisfied judgment rendered in favor of his assignor in 1905, applied to the superior court of Los Angeles County, pursuant to the provisions of section 685 of the Code of Civil Procedure, for an • order directing the issuance of an execution for the enforcement of the judgment. Upon the hearing of the motion, the judge from the bench expressed the view that the application so made by plaintiff should be granted, and directed plaintiff’s attorney to prepare and submit an order for the issuance of an execution, stating that he would sign the same. Thereafter the court refused to make such order, but instead,

[314]

on January 8, 1914, as shown by the return of respondent, made its order denying the application.

The petition for the writ must be denied. The views of the judge expressed from the bench as to plaintiff’s rights cannot be construed as an order granting the motion. It appears to be petitioner’s contention that, since the judge announced from the bench that in his opinion plaintiff was entitled to the order asked for, he should have adhered to the opinion so expressed. What the judge said from the bench, since it did not constitute the order of the court, was immaterial. We have repeatedly held that the opinion of a judge filed in a case, where inconsistent with the findings or other action of the court, is not part of the record or entitled to consideration in determining questions brought up on appeal. So here, until the order was in fact made, there was no action on the part of the court, and the expressed views of the judge were as much subject to change as though they had remained unuttered.

By making the order denying plaintiff’s application the court acted upon the same. Whether the ruling be erroneous is immaterial, for, since it is not the function of a writ of mandate to review error

(Gesford

v.

Superior Court,

114 Cal. 466, [46 Pac. 383]), conceding its existence, no relief can be had in this proceeding.

The application is denied.