Matter of De Lucca

ANGELLOTTI, J.

This is an attempt, without, action and under the provisions of section 1138 et seq. of the Code of Civil Procedure, to obtain a decision as to whether a search-warrant, requiring a search of the premises of respondent for certain property, and the taking of the same if found, already issued by the appellant, as justice of the peace, and in the hands of the sheriff of San Diego County, who was about to execute the same, was issued without jurisdiction and authority of law. The agreed case was submitted to the superior court of San Diego County by respondent and appellant alone, the officer holding said warrant not being a party to the submission.

The question to be decided, as stated in the submission, was “Whether the said William H. Price as he is justice of said Julian Township, county of San Diego, state of California, have power, authority and jurisdiction to entertain, receive and file said affidavit for said search-warrant . . . and whether he have power, authority or jurisdiction to issue said search-warrant.”

The superior court ordered and adjudged that said justice had no such jurisdiction, and that the warrant was issued without authority of law.

The justice of the peace appeals from such judgment.

We are clearly of the opinion that the superior court was without jurisdiction, upon the submission presented to it, to determine the question stated therein. The special jurisdiction conferred by section 1138 of the Code of Civil Procedure is limited in terms to the hearing and determination of such questions in difference as might at the time of the submission be the subject of a “civil action” between the parties making the submission, and it must appear in such a proceeding, by affidavit, that the controversy is real, and the proceedings in good faith,

“to determine the rights of the

parties.” In other words, there must at the time of the submission be a real controversy between the parties thereto which might then be

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settled in a civil action brought by one or more of such parties against the others.