Weisman v. Board of Building & Safety Commissioners

CRAIG, Acting P. J.

The respondents herein petitioned the superior court for an order to compel the Board of Building and Safety Commissioners of the City of Los Angeles and the chief inspector of that board to issue a permit to erect a building on certain real property situated in said city. Appellants, although given legal notice, made no appearance by answer or demurrer. However, at the time of the hearing on the petition, through their attorney, the city attorney of Los Angeles, they appeared in open court and stated that they had no defense. The court then duly viewed the papers, received evidence on the hearing of the alternative writ which had previously been issued, and gave judgment for the issuance of a peremptory writ as prayed. This hearing took place on the eleventh day of August, 1925, and the court announced its judgment at that time. The formal judgment was not filed until the nineteenth day of the same month. In the meantime, and on the seventeenth day of August, appellants served and filed their notice of appeal “from the judgment, order and decree, and from the whole thereof rendered in the above-entitled court on the 11th day of August, 1925, in favor of the plaintiffs in said action and against the said defendants.”

It is claimed that this judgment was granted by default. This obviously is not true. The judgment recites, and there is nothing in the record to impeach the statement, that the court reviewed the petition and “heard and considered the evidence.” Furthermore, appellant appeared by attorney, and judgment was rendered upon the hearing as prescribed by section 1095 of the Code of Civil Procedure.

(Pereria

v.

Wallace,

129 Cal. 397 [62 Pac. 61].)

Appellants quote authority that

mandamus

is not to be permitted to compel the performance of acts which could not legally be done. There is nothing in the record to show that such would be the ease in this instance. The same answer makes it unnecessary to consider cases to the effect that

mandamus

will not issue where its result would be inequitable or unjust.

Appellants argue that an ordinance is not a law within the meaning of section 1085 of the Code of Civil Procedure, but this has no foundation. It was decided to