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 [121] of his cause is a great hardship, and often productive of serious pecuniary loss, but such appellant suffers no greater hardship or loss than though he proceeds to trial, and the court decides against him upon final judgment when he has a cause full of merit. As was said in Sherer v. Superior Court, 94 Cal. 355: “ Within the limits thus prescribed, its errors in the exercise of its jurisdiction, however gross or glaring they may be, must be submitted to as a part of the sacrifice which every individual is compelled to yield to the infirmities of human government.” These views are in conflict with Carlson v. Superior Court, 70 Cal. 628, and that case must be considered as overruled. The appeal in that case was dismissed, upon the ground that it was taken upon questions of law, and should have been taken upon questions of both law and fact. This court said the appeal vested the superior court with jurisdiction to hear and determine the question, and to dismiss the appeal was an act of the court in excess of its jurisdiction. The entire reasoning of' the court upon the matter goes to the question that the order of the court in dismissing the appeal was erroneous,—a matter entirely immaterial to the issue involved. The vital question was, Did the superior court exceed its jurisdiction in dismissing the appeal? not, was the ap. peal erroneously dismissed ? When an appeal is regularly taken, the court not only has jurisdiction to try the cause upon its merits, but it has entire and complete jurisdiction of the cause for any and all purposes. It has jurisdiction to hear a motion to dismiss the appeal as fully as it has jurisdiction to hear and determine the cause upon its merits; and to erroneously dismiss the appeal is no more jurisdictional than to erroneously decide the merits of the cause. It follows that if the court erred in dismissing the appeal, it was done in the exercise of jurisdiction, and not in assuming jurisdiction which did not exist. It was" a mere error in the exercise of its power. — an error of [122] law which will not he reviewed by an original proceeding. If there are other cases following in the walce of Carlson v. Superior Court, 70 Cal. 628, they are valueless for future precedent. Let the writ be dismissed. De Haven, J., McFarland, J., Harrison, J., and Sharpstein, J., concurred.