Booth v. Superior Court of the City & County of San Francisco

CASHIN, J.

A proceeding in

certiorari

to review an order of the Superior Court of the City and County of San Francisco directing that an action pending therein be tried .by a jury.

[710]

The action in the Superior Court was brought by petitioner to recover on several assigned claims for money had and received. The defendant therein answered, whereupon petitioner served a notice of motion to set the case for trial. The defendant failed to appear in response to the notice, and the cause was by order of the court placed on the trial calendar and a day fixed for the trial. Subsequently the defendant, upon notice to petitioner, moved the court for an order placing the cause upon the jury calendar for trial, which motion was granted.

Petitioner contends that the defendant, by failing to demand a jury at the time the cause was first placed on the trial calendar, waived his right thereto, and that in making its order therefor the court exceeded its jurisdiction.

A writ of review may be granted when an inferior tribunal has exceeded its jurisdiction and there is no appeal nor, in the judgment of the court, any plain, speedy, and adequate remedy (Code Civ. Proc., sec. 1068).

In the instant case the trial court had jurisdiction both of the parties and the subject of the action, and the order in question, as in the case of a denial of a jury trial where a jury might be waived, was an exercise of such jurisdiction

(Wittman

v.

Police Court,

145 Cal. 474 [78 Pac. 1052];

Goodman

v.

Superior Court,

8 Cal. App. 232 [96 Pac. 395]). Moreover, the order was one which may be reviewed on appeal from the final judgment in the action (Code Civ. Proc., sec. 956;