Kokole v. Superior Court (1911) · DecisionDepot

Kokole v. Superior Court

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Nov 13, 1911 No. Civ. No. 912.Published

Before: Hart

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Holding. The court held that a writ of review is unavailable because the petitioner had an adequate remedy by appeal from the order dismissing his motion for a new trial, and he failed to timely appeal the underlying judgment.

Issues

Whether the trial court exceeded its jurisdiction in dismissing proceedings to settle a statement on a motion for a new trial.
Whether the petitioner had a plain, speedy, and adequate remedy by appeal.
Whether the issuance of a writ of possession by the clerk was an act in excess of the court's jurisdiction.

Disposition. writ discharged

Quotations verified verbatim against the opinion

“A writ of review will lie only where “an inferior tribunal, board or officer, exercising judicial functions has exceeded the jurisdiction .of such tribunal, board or officer, and there is no appeal”

“The order granting the motion to dismiss the proceedings referred to is a special order made after final judgment and from which an appeal may be taken.”

“The demurrer to the petition must be sustained and the writ discharged.”

Synopsis

PETITION for writ of review to annul proceedings in the Superior Court of Tehama County. J. E. Prewett, Judge presiding.

The facts are stated in the opinion of the court.

HART, J.

This is a petition for a writ of review. It appears from the petition that petitioner instituted an action, on December 12, 1909, in the respondent, superior court, against M. R. Hook, the town of Red Bluff, a municipal corporation, and the members of the board of trustees of said town, for the purpose of securing a decree reforming a certain deed, by which certain land was conveyed by said petitioner to said Hook, so that said deed would conform to the intention of the parties with respect to the description of the property so conveyed.

After issue joined and several continuances of the trial of the cause, the action came to trial on the sixteenth day of June, 1910, before the respondent, Honorable J. E. Prewett, judge of the superior court in and for the county of Placer, who had been requested by the judge of the respondent court to sit in the trial of said cause. The cause having been tried, findings of fact, conclusions of law and judgment against petitioner and in favor of the defendants were filed, entered and docketed.

Thereupon the following proceedings were had: July 12, 1910, notice of motion for a new trial was filed by the petitioner here—plaintiff in said action; July 14, 1910, cost bill and notice of judgment were filed; August 9, 1910, stipulation filed extending time to prepare statement on motion for a new trial to September 11, 1910; October 21, 1910, plaintiff was granted thirty days, in addition to the time allowed by law, in which to serve statement on motion for a new trial; November 29, 1910, statement on motion for a new trial filed; December 5, 1910, proposed amendments to statement filed; June 20, 1911, motion to dismiss proceedings in the matter of the settlement of the statement on motion for a new trial for want of due diligence in presenting the same for settlement; June 23, 1911, motion to dismiss proceedings

in re

statement on motion for a new trial was argued, sub

[456]

mitted and taken under advisement, and on July 8, 1911, the court filed its written opinion granting said motion.

On August 1, 1911, a writ of possession was issued on the judgment and the petitioner was, by virtue thereof, dispossessed of the disputed property.

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fectly does he speak the English language. He does not pretend, however, to be versed in the law, and even had he been able to make himself understood, it is very clear that he could have afforded no assistance to the court in the decision of the question submitted by his petition, assuming that the question so presented was one upon which there existed ground for legitimate controversy. These observations proceed from a conviction, based upon what we have seen of the petitioner, that he labors under the mistaken belief that there is merit in his asseverations that he has not been fairly treated in this litigation and that he is just as capable of disclosing the errors, if any, upon which he bases his complaint and securing their correction as a lawyer would be. There can be no doubt that the petitioner honestly believes that he has not been justly treated in the decision by which the proceedings on the settlement of his proposed statement on motion for a new trial were dismissed and he, therefore, deprived of the opportunity to appeal from the order denying him a new trial, had such order, if the motion had been made, been entered against him. But such belief is, it is very plain from the record here, founded in and harbored by erroneous notions of the law, for there is absolutely no real or just ground for its support. But he would, indeed, be bereft of all feeling who would not sympathize in full measure with a litigant so unfortunate as to have permitted himself—not a lawyer or at all familiar with the procedure by which the law must be uniformly administered—to become possessed of the belief that he could with any hope of success personally represent himself in important litigation and that he could, unaided by one skilled in the technical and abstruse rules governing remedies and procedure, a clear comprehension of which often puzzles lawyers of no mean ability, preserve and protect all his rights in the action. The appearance of the venerable petitioner in this court, silently appealing for relief from what he has allowed himself to conceive to be an unjust judgment, was pathetic in the extreme, yet, even if his belief were well founded as to said judgment, this court is powerless to afford him any relief or aid to that end in this proceeding. Indeed, by his own negligence, according to the record here, he has lost all ground for hope of relief, if any he was entitled to,

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Synopsis

HART, J.

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