Stuttmeister v. Superior Court

Searls, J. This is an application by W. O. Stuttmeister, as administrator with the will annexed of the estate of F. W. R. Stuttmeister, deceased, for a writ of certiorari directed to J. V. Coffey, judge of tile Superior Court, Department Nine (probate), in and for the city and county of San Francisco, requiring him to certify to this court for review the record in the matter of the estate referred to.

An alternative writ issued, under which the record is before us, and from which it appears that on the twenty-third day of July, 1885, an order was made by the Superior Court (in probate), requiring the petitioner, as administrator of the estate.of F. W. R. Stuttmeister, to sell at public auction certain real estate belonging to the estate of deceased, situated on Howard Street, San Francisco.

[323]The petition for the order Of sale was filed by and on behalf of John A. Collins, an adjudged creditor of the estate, and is in the usual form, showing the existence of debts, the necessity of a sale to pay the same, that the administrator has failed to apply for an order, etc.

The order of sale recites the facts of notice and service upon the administrator, finds the existence of debts against the estate, necessity of sale of the real property to pay such debts, etc., in the usual form, shows that the administrator was present by attorney, and consented to the order.

Subsequently, and on the nineteenth day of February, 1886, after notice and hearing, an order was made by the court, reciting that the administrator had unreasonably neglected and refused to comply with the order of sale of July 23, 1885, and ordering him without delay to proceed to sell the property as in the Order of sale directed, etc. Thereupon the writ herein was sued out.

“A writ Of review [certiorari] may be granted by any court, except a Police or Justice’s Court, when an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy, ahd adequate remedy.” (Code of Civ. Proc., sec. 1068.)

The writ will not lie where there is an appeal from the action complained of. (People v. Shepard, 28 Cal. 117; People v. Turner, 1 Cal. 153; Clary v. Hoagland, 13 Cal. 173; Newman v. Superior Court, 62 Cal. 543; Golden Gate H. M. Co. v. Superior Court, 65 Cal. 187; Slavonic M. B. Association v. Superior Court, 65 Cal. 500.) And if there is an appeal, but the time for taking it has elapsed, the writ will not lie. (Bennett v. Wallace, 43 Cal. 25; Faut v. Mason, 47 Cal. 8.)