Jones v. Keyes

CONREY, P. J.

Petitioner asks for a writ of mandate commanding respondent, as district attorney, to certify to ■the county Civil Service Commission of the county of Los Angeles the name of petitioner as one entitled to a stated salary claimed by her for services as juvenile investigator in the department of the district attorney of said county, and to command the respondent to admit the petitioner to

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the use and enjoyment of her right to perform the duties of said office of juvenile investigator.

It is alleged in the petition that in January, 1923, petitioner commenced an action in the superior court of Los Angeles County for a writ of mandate directed against Thomas Lee Woolwine, then district attorney of said county, to compel said district attorney to restore her to her said position and to certify her name to the Civil Service Commission of said county for the payment of her salary; that an alternative writ of mandate was issued out of said court; that upon the hearing thereof a nonsuit was granted by said superior court, and that said action was never heard or determined upon its merits; that findings were never made or signed by said court, but that said action was disposed of by the granting of a nonsuit; that the time for appeal from said order granting a nonsuit has expired, and petitioner now makes this application to this court for the reason that her ease has never been tried or determined upon its merits, and for the further reason that a further application to said superior court would be useless and of no effect.

It is provided by rule xxvi of the supreme court (176 Pac. vii) that when an application is made to the supreme court or a district court of appeal for a writ of

mmdamus,

and such application might have been lawfully made to a lower court in the first instance, the petition shall set forth the circumstances which, in the opinion of the applicant, render it proper that the writ should issue originally from the court to which such application is made, and not from such lower court.

The necessary inference from such rule is that if the stated circumstances do not furnish a proper reason for not making the application to the lower court, the supreme court or this court, in the exercise of its appropriate discretion, will decline to issue the writ.