Bennett v. Wallace

43 Cal. 25 | Cal. | 1872

By the Court,

Wallace, C. J.:

The writ of certiorari lies only in those cases in which, in the exercise of judicial functions, an excess of jurisdiction has occurred—and in which “ there is no appeal,” etc. (Pr. Act, Sec. 456.) Unless the case be brought within both these conditions, the writ must be dismissed.

It is not denied on the part of the petitioner that the final judgment and the orders of the District Court in question might have been examined here upon appeal taken in time for that purpose; but it is insisted that, as the time limited by statute for the taking of the appeal has been suffered to elapse, the case has thereby become one in which there is no appeal, and is thus brought within the terms of the statute referred to. This view is answered by the case of Milliken v. Huber, 21 Cal. 166. The statute was intended to supply a remedy where none existed in the first instance, and not to supplement one lost through the laches of the party himself.

Writ dismissed.