89 P. 137 | Cal. Ct. App. | 1907
The petition sets forth that on September 6, 1906, there was filed in the office of the clerk of defendants a petition asking that defendants give notice of an election to be held for the purpose of determining whether the *702 territory in said petition described, including the town of Corning, shall become incorporated under the act approved March 13, 1883. It is set forth in the petition for the writ that in certain particulars, alleged to be essential to the jurisdiction of the defendants to act in the matter, the petition presented to defendants was fatally defective. It appears that the petition was presented to and heard by defendants, as such board of supervisors; that an election was held pursuant to notice thereof published in the "New Era," a newspaper published in the town of Corning, said county, but as to which it is alleged that no proof of such publication was made to said defendants before making the order declaring the result of said election or before making the order declaring the territory described therein had become duly incorporated as a municipal corporation of the sixth class.
The petition for the writ alleges further: "That heretofore your petitioner presented his petition and application to the Hon. John F. Ellison, Judge of the Superior Court of Tehama county, State of California, praying that a writ of review issue to the Board of Supervisors of the county of Tehama in the matter hereinbefore set out and alleged in this petition, and on the 11th day of January, 1907, the said judge . . . made and entered an order refusing to issue a writ of review in said matter and denying the application of your petitioner herein for such writ of review and dismissing your petitioner's petition in said matter. That the said Hon. John F. Ellison, judge of the Superior Court of Tehama county as aforesaid, denied the said application of your petitioner upon the sole ground that the subject was not a proper matter for the issuance of a writ."
Upon filing the petition, this court issued an order for the defendants to show cause why the writ should not issue, in response to which defendants appeared by demurrer and also by answer, showing the proceedings before the superior court. The demurrer alleged the following grounds: 1. Insufficiency of facts to constitute a proper cause for writ of review; 2. That defendants, in respect of the matters set forth in the petition were not exercising judicial functions; 3. That in said matter there is "a plain, speedy and adequate remedy" without resort to writ of review; namely, by quo warranto; 4. That the said board has fully completed its proceedings in the matter and that no beneficial purpose would be subserved by *703 the writ; 5. That the town of Corning is now by virtue of the said proceedings, in the full enjoyment of the powers of a municipality and is acting in fact as such; 6. That the order of the superior court made and entered on the eleventh day of January, 1907, is an appealable order and is conclusive except on appeal and hence no writ should issue.
It appears by plaintiffs' petition that the matter as here presented was submitted by petitioner to said superior court, was heard by that court, writ denied and proceedings dismissed.
The view we have taken of the case makes it unnecessary to pass upon the questions presented by defendants at this time, except the last one above enumerated.
The superior court had jurisdiction and was empowered to hear and determine the matter. The reason given by the court for, or the ground of, his decision does not affect the question we are about to consider. He had jurisdiction to act and he exercised that jurisdiction. This was sufficient for the present purpose. "A judgment in a special proceeding is the final determination of the rights of the parties therein." (Code Civ. Proc., sec. 1064.) The provisions of part two of the Code of Civil Procedure, relating to new trials and appeals, apply to the proceedings mentioned in title one, part three, which relates to writs of review and other writs. (Code Civ. Proc., sec. 1110.) "An appeal may be taken to the supreme court from the superior court in the following cases: 1. From a final judgment entered in an action or special proceeding commenced in the superior court or brought into a superior court from another court." (Code Civ. Proc., secs. 939, 963.)
It was held in Knowles v. Thompson,
Many cases might be cited where appeals have been taken from judgments of superior courts upon proceedings for the writ of review. Stumpf v. Board of Supervisors,
In the case of Knowles v. Thompson,
So we think must be the action of this court upon the present petition.
The writ is denied.
Burnett, J., and Hart, J., concurred.
