Warren v. Superior Court

ANGELLOTTI, J.

This is a motion to dismiss a writ of

certiorari

heretofore issued from this court, on the ground that the petitioner has not prosecuted the same with reasonable or any diligence.

The writ was issued on the eighth day of December, 1903, and commanded respondent to certify and send to this court a transcript of the record and proceedings in a certain cause pending in the superior court of the city and county of San Francisco. It was served upon the judge of said court on the ninth day of December, 1903. At the time of the giving of the notice of this motion, April 21, 1904, and at the time of the hearing of said motion, May 2, 1904, no return had been

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made to said writ, and it appears that no request had been made by petitioner of the clerk of said court that he make any return, and that no step had been taken to enforce the making and forwarding of the same. The position of petitioner, as shown by his argument on the hearing of this motion, was, that the writ having been served upon the respondent, he, petitioner, had no further duty to perform in the matter of procuring the certification of the record to this court.

Since the hearing of this motion, this court has decided, in the ease of

The I X L Lime Co.

v.

Superior Court,

143 Cal. 170, that it is incumbent upon the prosecutor of a writ of

certiorari,

rather than the party adverse to him, to see that the return is made, to use due diligence in having the same made, and to pay to the officer required to make the return any fees that may be provided by law for furnishing the copies of the papers and records and the making of the certificate. It was further stated in the opinion in that case that the authorities are to the effect that such a proceeding should b'e dismissed if the petitioner fails to use diligence in the prosecution thereof.