121 P. 701 | Cal. Ct. App. | 1911
Certiorari. The record transmitted in obedience to the writ issued shows that a certain action brought in the superior court of Los Angeles county, wherein petitioner was plaintiff and the Park Land Company was defendant, was duly and regularly tried, findings of fact made and judgment rendered for defendant. Petitioner asks that such acts be declared null and void, claiming that the action of the court was in excess of its jurisdiction, for the reason that prior to entering upon the trial thereof, there being no affirmative relief demanded by defendant, petitioner, who was plaintiff in the action, moved the court for a dismissal of the same, which motion was by the court denied. There is nothing whatever in the record showing the making of such motion or ruling. Indeed, petitioner does not claim that such facts are shown by the record. In lieu of such absent record, it presents a transcript of a colloquy occurring at the time between the court and counsel for the respective parties, which it is claimed shows the making of the motion and the adverse ruling had thereon. At the hearing in this court counsel for respondents admitted the correctness of this transcript, but insisted that it did not appear therefrom that such alleged motion was made or ruling had thereon; and, further, since the record disclosed that the court had jurisdiction to try the case, such fact could not be contradicted by evidence dehors the record, and hence the matter was not a subject of review upon certiorari.
Accepting the record as showing that no affirmative relief was asked by defendant, and conceding that the transcript shows that the motion to dismiss was made in open court and *694 by the court denied, we are, nevertheless, of the opinion that petitioner is not entitled to the writ applied for.
1. If the motion was denied, the case was not dismissed, but pending, and therefore subject to the jurisdiction of the court. It is true that under subdivision 1 of section
2. The office of the writ of review extends only to those cases where "an inferior tribunal, board, or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, *695
board, or officer, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy." (Code Civ. Proc., sec. 1068.) No appeal lies from an order dismissing or refusing to dismiss an action (Code Civ. Proc., sec. 956), and petitioner, upon authority of Garthwaite v. Bank of Tulare,
3. Assuming, as claimed by petitioner upon the strength of the Garthwaite case, that the order cannot be reviewed on appeal from the judgment, nevertheless, there existed a plain, speedy and adequate remedy by means of a motion to set aside and vacate the judgment upon the ground of want of jurisdiction, in support of which the facts which it is claimed ousted the court of jurisdiction could have been presented, and upon the making of an order upon such motion either party could have appealed therefrom, as from an order made after judgment, upon a bill of exceptions embodying the facts upon which the ruling of the court was based, thus presenting *696 the question for consideration upon a duly authenticated record.
4. In no event can the record of a court of general jurisdiction showing a judgment duly rendered upon trial be contradicted by evidence dehors the record, whether such evidence be controverted or the truth thereof admitted. It follows that the writ must be dismissed, and it is so ordered.
Allen, P. J., and James, J., concurred in the judgment.