Hughson v. Superior Court

KNIGHT, J.

Petitioner seeks by this proceeding in

certiorari to

have reviewed and annulled an order made

[659]

by the respondent court vacating the defaults of two defendants entered by the clerk for failing to answer within the time allowed by law the fifth amended complaint filed by petitioner in an action to foreclose a mechanic’s lien, it being claimed that the motion to vacate was filed more than six months after the defaults were entered, and that therefore the court was without jurisdiction to entertain or grant the motion. (Code Civ. Proc., sec. 473.)

“ With reference to the exercise of the power of this court to grant a writ of

certiorari,

it is pointed out by the case of

Stoddard

v.

Superior Court,

108 Cal. 303 [41 Pac. 278, 279], that even though a court be without jurisdiction to make an order or decree, if such order or decree ‘is appealable,

certiorari

will not lie, because it lies only where “there is no appeal”. (Code Civ. Proc., sec. 1068.) In this respect,’ says the court, ‘it differs from

mandamus

and prohibition, which lie

“in all cases

where there is not a plain, speedy, and adequate remedy in the ordinary course of law”. (Code Civ. Proc., secs. 1086, 1103.) With respect to

certiorari

the language of the code is “when . . . there is no appeal,

nor,

in the judgment of the court, any plain, speedy, and adequate remedy”. (Code Civ. Proc., sec. 1068.) In