*1 employees members as plaintiffs business do- which were ing independent peddlers. competition “And work for being an entirely lawful activity, competing whether the groups be unions, or unions and individuals, equity may not interfere restraining form the use lawful action used in struggle.” concerted (McKay Retail Auto. L. Union S. 1067 (1940), 322.) No. supra, p.
From apparent what has been said it defendants sought neither an unlawful end nor used unlawful means. right They compete plaintiffs in free market with employment in the milk distributing business right possible boycott had the aid pressure use the their In in- my cause. opinion junctive sought plaintiffs relief should be reversed.
Carter, J., and Traynor, J., concurred. Appellants’ petition rehearing January was denied Carter, 1945. J., Traynor, J., Schauer, J., voted for rehearing. F. No. 17092. Bank. Dec.
[S. 1944.] ROBERT al., Petitioners, S. HOWARD et v. SUPERIOR al., Respondents.
COURT OF SAN MATEO et COUNTY *2 W. Clark, Morrison, Foerster, Herbert Hohfeld, Shuman & Clark Vaughn and Orville R for Petitioners.
Joseph J. Bullock McCarthy and Neil S. for Petitioners on Motion for Substitution. Sapiro,
J. H. Henry Robinson, George K. Marcel Ford and Cerf, E. Robinson & Respondents. Leland for
GIBSON, The attorneys C. J. for the executors filed petition asking $10,000 ordinary as fees allowance of $15,000 extraordinary as posted but the notice the notice served on counsel for the husband of the testatrix merely $25,000 petition referred to a for the allowance of “on compensation rendered,” account of their for services mentioning compensation whether such was for or dinary or extraordinary given services. These were notices pursuant to an court, order of prepared by petitioning at torneys, which likewise did not the two differentiate between types compensation. opposition There was no at the hear ing probate granted and the prayed. fees
About later, two months “peti- the husband filed verified a tion” to vacate under section 473 of the of Pro- Code Civil cedure, claiming that when he his counsel examined the notice they served on them mistakenly believed that the execu- attorneys tors’ seeking merely ordinary fees, were took no action reliance on that mistaken belief and that petition to vacate was promptly upon discovering filed true facts. pleading With this verified his husband filed objections verified petition for allowance of fees. The probate court an prior issued order to show cause why order aside, should not subsequently, be set after a con- tinuance of the hearing, prior order was vacated. attorneys for sought the executors then a writ of certiorari on behalf executors, estate, themselves, to annul vacating order on the that such was in ex- jurisdiction cess of the court’s petition because the vacate did grounds not show inadvertence, sufficient surprise, of neglect. mistake or excusable extraordinary mandamus, remedies of prohibition permitted
certiorari are in some states as a substitute a reviewing writ of error in interlocutory or intermediate orders
787 from re injury result irreparable where would and decrees final subsequent from quiring party appeal wait and a Rule, (See Judgment judgment. Crick, The Final order or state, the 557.) in this However, 41 YaleL.J. tribunal an inferior only writ certiorari will issue when . jurisdiction . and there is appeal, “has exceeded . [its] (Code adequate remedy.’’ any plain, speedy, nor . . . Proc., High Superior School Dist. v. 1068; Civ. Redlands § Brawner, ; Kupfer 20 v. Court, 348 P.2d Cal.2d [125 490] 19 268].) 562 be used as This writ cannot B.2d [122 (Cook error, possible. appeal writ whether or not an Com., 663]; Civil 160 589 Estate v. Service P. Cal. [117 Paulsen, ; Estrin v. [178 340]; Ivory Cal.2d 670 P.2d v. Cal. [96 2d 455 P.2d The order under section 473 the Code Civil Procedure the allowance having (Prob. probate, been made in appealable was not Code, 1240; Superior Court, Lilienkamp v. § Grussing, Cal.App.2d Estate 152]) appeal the matter will be reviewable an denying from attorneys’ fees. (Lilienkamp Court, supra.) In Bank America Cal.2d 697 permitting held that complaint amendment to the was not reviewable on certiorari (1) because order, had to make the (2) the order appeal was reviewable on the final from judgment. petitioners that case the an adequate rem edy by appeal final judgment, from the and we said that “Certiorari will lie sought if the effect the order to be annulled can be reviewed appeal and nullified on an from the judgment, final though even appeal- itself is not course, language able.’’ Of must be read in relation to particular facts involved, may and there be sit uations in which an from subsequent order or from the final adequate not be an *4 but remedy, the facts in holding this case are within the in the Bank of Amer ica ease. The order does not amount to final deter mination merely reopens but the matter for further consider ation to the end that there a proper on decision the merits after a full facts, examination of the oppor the tunity for review on a adequate affords an
'788
remedy. not entitled to have the order petitioners Hence are herein. reviewed is a likewise will issue unless there lack
Certiorari not probate jurisdiction; or an excess and in this the of case jurisdiction res and of the unquestionably the parties. question notice, of the service of either There is original petition as to the to the under section or as motion although original peti it is claimed that the notice of the misleading. tion was defective grounds The made motion to vacate was on the proper fees notice and allowing made was mistake, inadvertence, surprise that it was taken reason of neglect part of the excusable the husband his counsel. In written it order, absence of formal will be presumed in probate the motion found that the (1) application for an to notice allowance $25,000 compen attorneys executors’ “on account of their defective, sation for rendered” or at least mis services leading (2) ; and his in that the husband counsel were fact n misled solely notice and believed that related or mistake, dinary fees; (3) such belief was result of inadvertence, surprise neglect; (4) excusable his If the husband was entitled to relief from default. show findings, probate ing made such court had warranted jurisdiction grant relief under section and we cannot proceeding in or not decide whether error doing. in so petitioners’ lack affi claims as to sufficient mistake, inadequacy showing etc., merits,
davit of objections allowance insufficiency proposed jurisdiction act on do affect the of the court to in possibility error petition, merely indicate the made jurisdiction. The motion was exercise of that grounds statutory and, assuming that the trial court should and his belief of the husband have decided that the mistaken ascertain the negligent due to their failure to counsel was only thereto, error can be reviewed with reference facts argument petitioners its dis- court abused equivalent cretion and therefore exceeded every saying case in which a court errs the exer- acting of its under 473 it is excess cise of discretion section *5 its abuses unless the court error for there is no jurisdiction, argument obviously unsound. is This discretion. in excess claiming court acted in that the petitioners, Lankton rely cases as jurisdiction, on such
of its 1170]; Treat v. P.2d Court, Cal.2d Whitley v. 7 Cal.2d cases in these The decisions 449]. Shrimpton v. distinguished (as may clearly pointed out be in 889]) on the the trial court ground each one involved an order of that any prescribed pursuance not made in which was Proce procedure by as defined the Code of Civil methods proposed instance, dure. For in the Lankton case the court’s in modification of its excess of its any ground specified in where such action was not based on ground judicial section but on the that had been error made, where the time for a motion for a new trial had elapsed and the modification pursuant could be made Similarly, findings section 662. in Treat case the ground were vacated on that there had been comply directory provision a failure to with the of section 634 findings proposed copy that be served party. opposing However, ground on the this not a vacation, attempt and there was no on such to base the order sections 473 provisions or 662. Hence it be clear should entirely the factual situation of these is different cases proper grounds asked on from a the court to act case where act, claimed abused and does so and the error finding in excusable its discretion was a mistake or neglect, etc., warranting relief section 473. In other under ground not sets aside its final order on a words, if the court acting in statute, may it be recognized by authorized on author jurisdiction, but if it does so excess of its insufficiency evidence statute, possible ized go jurisdiction, but is action does not to its support showing long as there is some So basis for review proof action, quantum the trial court’s support weighed certiorari. considered or cannot be juris- lacked probate that the it cannot be said Since the allowance set aside section 473 to diction under aon reviewed may that order and inasmuch as on certiorari. not be annulled It appears respondent court, allowing fees, part relied stipulation asserted such might be set aside- and the matters of fees re- petitioning attorneys deny examined. such stipulation was intended. It is unnecessary for us to determine the effect statements of counsel understood constitute stipulation, to. such since we have decided that the order may not be reviewed in proceeding.
The motion for the substitution of Neil McCarthy S. and Joseph J. Bullock attorneys as for Robert Howard S. and Lindsay S. granted Howard as prejudice executors is rights petitioning attorneys in connection with the presentation of their claims for fees. proceeding in certiorari is dismissed.
Shenk, Curtis, J., J., Traynor, J., Schauer, J., and con- curred.
Edmonds, J., participate did not therein.
CARTER, J. In undisputed I dissent. this ease it is counsel petition for the proceed executors filed a in the estate ings attorney’s for the fees; allowance of that notice of the hearing petition respects on given in required all law; by thereafter legally matter was heard properly; opposition no offered petition for the' fixing allowing fees. After the order the fees was made the court purporting the order pursuant vacated to act to section 473 of the Code of Civil Procedure. There nowas basis whatsoever for its action. The sole excuse offered one failing oppose petition the heirs for for fees and for relief under section was that he failed cognizance to take petition and notice. There fraud, trickery, was no de nothing pure simple ceit mistake. There was neglect oppose petition. neglect. There is no excuse A for that court authorized to vacate an order or only when against it is taken a party mistake, because of “his inadvert ence, surprise neglect.” (Code 473.) Proc., or excusable Civ. § Hence, the case falls squarely within the rule that a has court power no to make an order affecting order or ground theretofore made unless there is a therefor fixed statute or some rule of law. There must one of existed have conditions mentioned section 473 before the court had authority necessarily to act. It follows that the court acted excess of its being and that true the vaca- tion should be annulled on certiorari.
Although majority opinion distinguish seeks to numerous which hold authorities former order will be annulled on certiorari where there existed grounds action, analogous its closely case is to Treat Superior Court, where the trial purported findings court to set aside its a motion for doing new trial grounds where there were no ascertainable so. This court annulled the order certiorari on jurisdiction. that the court exceeded The court stated at its page 638: argues
“Petitioner that the trial in granting said mo- tion findings to vacate and set aside the in said jurisdiction and, actions acted without and excess its therefore, quoted just may the minute order be void question vacated and annulled There is no on certiorari. the trial power court had not the to vacate set aside if original purporting findings judgment, to do so (Stanton annulled certiorari. ; see, also, Lankton v. Stanton v. Court, supra, require by ap- said: ‘To review(cid:127) to be *7 attacking peal every judgment unauthorized the order or of proceedings regular given by which the and necessarily embarrass, efficiency made not destroy, would the if legal system.’ our whole of therefore, question, presented “The sole is whether or not complained entered, of, the minute order as made and beyond power of the trial the court to make.....And party in the statutes is the to serve the nowhere a failure of copy proposed findings with a opposite party the of fact of a aside specified setting and conclusions law as of for vacating judgment. a or making possible authority “There are for two sources of order the trial One upon the which court could have relied. express statutory authority upon the conferred such source is 662 by provisions of section of the of Civil court Code conjunction with, exercised in and Procedure, which is to be duty upon motion a part of, a the court’s to a for new as rule authority, might trial. . . . The other source of which have trial order of upon relied court as a for the been basis 792 annulment, court, is power independent of the of inherent provisions, proceedings
statutory to correct mistakes in its judgments time annul within reasonable orders and and to a inadvertently, prematurely, or made improvidently . court. . . proceeded follows if the trial court
“It fact power by said 662 the Code under the conferred section of of making complained of, Procedure in the of the order Civil making power of such order have been within the would court, successfully and not be of the could attacked. such granting if the set aside and ... Or motion to original fact findings vacate the conclusions law findings had been based the fact that said signed pre- had been fact conclusion law and maturely improvidently, or under mistaken belief of party, judge opposite had been served on the the trial trial power order would been within court have said ’’ proper a would sustained as valid order. make and Whitley 75 v. [113 juris- held trial acted in excess of its insufficiency of the a new trial on evidence diction as the said ground. failed It was at specify it where page 82: “Finally, objection validity to determination of the an a as. orders, respondent urges the pro point tunc these nunc case, proper proceeding review not in this writ remedy by Respondent here has calls
petitioner her general rule that ceritorari not be used attention (4 1052). But is likewise for Cal.Jur. as a substitute recognized provided is not our order which well meaning appealable not an procedure is within Procedure, application section Civil Code proper Superior remedy. (Treat v. writ review the Court, 147]; Stanton v. Court, 7 Cal.2d [62 Diamond 1001]; P. v. Cal. Quevedo Cal.App. P. Cal.App. 126 ; Holquin Allison, procedure definite prescribes When a statute *8 conferred, it has contrary authority acts to the thus jurisdiction and certiorari lie to correct such exceeded its will Court, 262 Superior 13 Cal.2d P.2d (Rodman v. [89 excess. Paulsen, 35 Cal. same effect Estate (See 109].)’,’
793
Court, 202
;
Superior
v.
Cal.
P.
Stanton
654
App.
855]
[170
Court,
Superior
189
732
Cal.
Diamond v.
1001];
478
P.
[261
Court,
Cal.App. 764
Superior
82
36]; Bottoms v.
[256
P.
[210
;
Superior Court, 136
682
P.
Younger
Cal.
v.
;
[69
485]
P. 422]
Court,
Dean 473); v. settling a final (Security-First account Bank Nat. 69]). 1. majority opinion upon Shrimpton relies *9 approves Court, 22 that case and points very cited out that heretofore the cases appealable certiorari attack which was under itself obviously not in the as is con- true instant case order. That is opinion. in the It will be noted that majority ceded case, signed by the concurring opinion Shrimpton in the express opinion case, basis majority of the author the order under attack allowing certiorari was that appealable. respondents that counsel my opinion the contention In might be vacated stipulated that petitioners colloquy me that the between merit, clear to seems not sus- hearing motion counsel at the ceptible interpretation. to such annulling the issue my opinion
In should writ complained of. In Bank. Jan. No. 4547. 1945.]
[Crim. Corpus. MARZEC, PETE on Habeas re