Buckley v. Superior Court

Garoutte, J. — A motion was made in the superior court of Fresno County to dismiss the appeal then pending before that court in the case of Hulen v. Buckley, the ease having been originally tried in the justice’s court.

The motion was made upon the grounds that, — 1. The judgment appealed from was entered by default, and is not appealable; 2. That no motion was made in the lower court to set aside the default before the appeal •was taken; 3. That said appeal was taken upon questions of both law and fact. The court granted the motion, and we are now asked to review that action by a writ of review.

Section 1068 of the Code of Civil Procedure reads: “ A writ of review 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, [120]and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy.”

It will be noticed that the foundation of the writ is essentially and necessarily an excess of jurisdiction; for no act of tribunal, board, or officer exercising judicial functions, done or made within its jurisdiction, can ever be the subject of attack by writ of review. In the matter now before us, it is apparent that the court had jurisdiction of the subject-matter and of the persons; all the parties were before the court; the appeal was regularly taken; and we are at a loss to understand why-the court had not the same jurisdiction to hear a motion to dismiss the appeal as it had to proceed to a trial of the cause upon its merits. If it had jurisdiction to hear the motion, and as to that matter there can be no question, then its ruling upon the motion was simply an exercise of that jurisdiction, and however erroneous such ruling might be, it would only be an error of law, in no manner subject to review by an original proceeding in this court. In this case the court had jurisdiction to hear the motion, and it would be an absurdity to say that upon the submission of the matter the court had jurisdiction to deny the motion to dismiss the appeal, but no jurisdiction to grant it. As was said in Central Pacific R. R. Co. v. Placer County, 46 Cal. 670: ‘'It has been settled by a long series of decisions in this state, that a writ of certiorari brings up for review only the question whether the inferior officer, court, or tribunal has exceeded its jurisdiction, and cannot be used as a mere writ of error for the correction of mistakes, either in law or fact, committed by the inferior tribunal within the limits of its jurisdiction ”; citing many cases. It may be conceded that the action of the court in dismissing this appeal was entirely without support in the law, and furnished ample material to justify a reversal of the order if a proper matter for review under the statute; but such may be the fact, and yet no question of excess of jurisdiction be involved. To absolutely thus deprive the appellant of the right to be heard upon the merits