29 P.2d 192 | Cal. | 1934
Lead Opinion
This is an appeal by the petitioner from a judgment of the superior court in a certiorari proceeding affirming an order of the municipal court denying a motion to quash an execution.
In October, 1931, a judgment for $1117.35 was rendered in the Municipal Court of the City of Los Angeles against the petitioner and in favor of one Shane. In March, 1932, Shane filed an abstract of said judgment in the office of the clerk of the Municipal Court in San Francisco, where the petitioner resided. Based upon said abstract an execution was issued by the clerk of the Municipal Court in San Francisco and a levy thereof was made upon an automobile owned by the petitioner. Thereupon the petitioner presented a formal motion to the Municipal Court in San Francisco to quash the writ of execution on the ground that said municipal court was without jurisdiction to issue said writ and that the same was void. The motion was denied. No appeal from that order to the superior court was taken or attempted. The petitioner applied to the superior court for a writ of review, which was granted. Upon a return to the writ the order of the municipal court was affirmed. Hence this appeal.
In his opening brief the petitioner-appellant states as the legal questions involved: "Did the municipal court of San Francisco have any jurisdiction whatsoever in the cause; and, secondly, was its jurisdiction properly invoked and exercised?"
Following the question propounded there is much discussion upon the question of the jurisdiction of the municipal court with reference to issuance and enforcement of an execution on a judgment rendered in another county. Considerable confusion has resulted because of the failure to distinguish the question of jurisdiction of the municipal court to entertain and pass upon the motion to quash and the power of the clerk of the municipal court to issue the execution. This appeal involves the former question, namely, Had the municipal court jurisdiction to entertain the motion to quash and dispose of the same? We conclude that it had for two reasons: *739
First, the respondent Municipal Court, as a court, took no part in and had nothing to do with the issuance of said writ of execution. The writ was issued by the clerk of the court, without an order of court directing the same to issue, and the same was issued by the clerk in the exercise of a ministerial function. (Santini v. Justice's Court,
Secondly, certiorari is not the proper remedy when the aggrieved party has a remedy by appeal, even though the inferior tribunal was without jurisdiction to make the order. (Code Civ. Proc., sec. 1068; Helbush v. Superior Court,
From what has been said it follows that we may not, on this appeal, properly pass upon the question of the power of the clerk of the municipal court to issue an execution on said abstract of judgment. A determination thereof *741 one way or the other could not affect the result of this appeal.
The judgment is affirmed.
Seawell, J., Thompson, J., Curtis, J., Langdon, J., and Waste, C.J., concurred.
Dissenting Opinion
I dissent.
The majority opinion takes a constricted view of the sole question involved and bases its conclusion upon a ground not urged by either side of the litigation. Both sides concede that the basic question raised was whether or not the Municipal Court of the City and County of San Francisco had jurisdiction to issue a writ of execution on an abstract of judgment, and the judgment-roll supporting it, coming from another jurisdiction. The writ of review issued by the superior court to the Municipal Court of the City and County of San Francisco expressly reaches the proceeding had in the Municipal Court of the City and County of San Francisco resulting in the issuance and levy of an execution on this judgment. The majority opinion bases its conclusion upon the assumed fact that the Municipal Court of the City and County of San Francisco issued the execution in question without an order of the court itself. Respondent does not claim that an order of court was necessary or was absent. Coming from another jurisdiction, the execution could have been properly issued only upon an order of the court and it must be presumed that such an order was made. Moreover, this question is set at rest by the fact that the municipal court did ratify the action of the clerk by making its order refusing to recall and quash the said execution. The case of Adams v. Bell, ante, p. 503 [
The question of the jurisdiction of the Municipal Court of San Francisco to issue this execution is therefore fairly presented and if jurisdiction be wanting, the proceeding may be reviewed oncertiorari. (Buell v. Buell,
I think that the question of jurisdiction should be fairly met and decided.
Rehearing denied.
Preston, J., dissented.