Stewart v. Superior Court of San Diego

Harrison, J.— The application for the writ herein was made after notice to the respondent and after service upon it of a copy of the petition, a demurrer to the petition was filed on the part of the respondent upon the ground that the petition did not show that the superior court had exceeded its jurisdiction; and, at the hearing of the application, briefs were filed in behalf of the respective parties. The demurrer was also argued orally, and, after consideration thereof, an opinion was filed in which it was held that the court had exceeded its jurisdiction in its order adjudging the petitioners guilty of contempt, and the demurrer to the petition was overruled. (100 Cal., 543.)

Rule XXVI of this court contains provisions regarding the procedure to be observed when the original jurisdiction of the court is invoked in matters of this nature, and it is provided in subdivision 3 thereof that “Upon the return day of the alternative writ the respondent may make return either by demurrer or by answer, or both. If the return be by demurrer alone, and the demurrer is not sustained, the writ will be ordered to issue without further leave to answer.” Although, technically speaking, there is no alternative writ of certiorari, the manifest object of the rule is applicable to petitions for that writ as fully as to those for the other original writs referred to in the rule. A hearing after notice for the application serves the same purpose as the hearing upon the return to an alternative writ of mandate or prohibition.' One object of the rule is to enable the parties to the application to obtain a decision upon the sufficiency of the order or judgment sought to be annulled, without incurring the expense or the delay attendant upon waiting until there has been a return to the issuance of the [596]writ. If the order or judgment is set out at length in the petition, and the respondent concedes that it is correctly set forth therein, no useful purpose is served by the issuance of the writ and a formal return thereto in which the same order or judgment would be merely repeated. It is only when the correctness of the order as set out is challenged, or when other portions of the record will qualify its terms, that it would seem necessary for the issuance of the writ before a hearing upon the merits, and in such case the better practice would be to allow the writ to issue, and have the hearing upon the merits await the return, but when the entire merits of the controversy are presented in the petition, and the only question for determination is one of law depending upon a consideration of the order or judgment itself, a demurrer to the petition calls for a decision upon the sufficiency of the order. If the parties prefer to adopt this course of procedure the decision thereon will be upon the merits, and if the demurrer is overruled, the subsequent issuance of the writ and the judgment to be rendered after its return will be merely formal, and in accordance with the decision upon the demurrer.