McCue v. Superior Court
Before: McFarland
Synopsis
Application for a writ of certiorari to review an order' of the Superior Court of Marin County modifying a judgment which had theretofore been rendered in favor of the petitioner in a certain action entitled McCue v. Tunstead. At the date of the application for the writ, the time limited by law for appealing from the order had expired.
The Court. The writ must be dismissed. The writ will not lie where there is an appeal, and if there is an appeal, but the time for taking it has elapsed, the writ . will not lie. (In re Stuttmeister, ante, p. 322; Miliken v. Huber, 21 Cal. 166; Bennett v. Wallace, 43 Cal. 25.)
Writ dismissed.
McFarland, J., concurring. I concur in the judgment; but in my opinion there might be a case where, on account of unusual circumstances, a writ of review' would lie although there had been, at one time, a right of appeal, — as intimated in Kimple v. Superior Court of San Francisco, 55 Cal. 136.
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