97 P. 175 | Cal. Ct. App. | 1908
Lead Opinion
This is a proceeding instituted by the district attorney of Calaveras county to secure a writ of prohibition restraining the judge of the superior court of said county from settling a bill of exceptions in the above-entitled cause.
The application is based upon the ground that the said judge extended the time within which defendant might prepare and present his bill beyond the statutory period, and that "neither the defendant nor his counsel, nor any person in his behalf, either made, or presented or filed, as required by section
There were three separate orders made, the first extending the time for thirty, the second for ten additional, and the third for four more days, and the bill was actually presented twenty-three days after the statutory period had expired. *432
Section
The contention of respondent is that there was a substantial compliance with the requirement of the statute, in that the district attorney was present in court and consented to the continuance, and that good cause was shown to the court, although not by affidavit, why the order should be made. It is asserted that the requirement that the district attorney be given two days' notice is for the protection of this official, and that the affidavit is for the benefit of the court, and that an opportunity to make a timely objection, if no advantage is taken of it, constitutes a waiver of these requirements.
It was held, however, by this court, in People v. Blis,
In People v. Soto, ante, p. 322, [
My own judgment, however, yields assent rather to the views expressed in the concurring opinion of Mr. Justice Shaw.
To say that in that case or in this there was a substantial compliance with the provisions of the statute is to declare, it seems to me, that the opinion of the judge as to what is necessary to give the court jurisdiction is to be substituted for the will of the legislature, and the latter did not mean what its plain language imports. This would be a judicial usurpation of the legislative function. The requirements are simple, within the legislative authority, are provided for a wise purpose, and they should be observed.
But it has been held that prohibition is not the proper remedy.
As pointed out in the said concurring opinion in the Soto case, supra, petitioner has an adequate remedy by appeal. (Lindley v. Superior Court,
Again, basing its action upon affidavits filed on behalf of defendant, the court made an order relieving him of his default, as provided in section
It was held in the Soto case, supra, that said section is applicable to proceedings of this character, and while the neglect of defendant to comply with the requirement of the statute in presenting the bill of exceptions is manifest, we cannot say it was inexcusable or that the trial court abused its discretion in setting aside the default.
The alternative writ is dismissed and the petition denied.
Hart, J., concurred.
Concurrence Opinion
I concur.
In People v. Blis,
There is a growing disposition, which should not be encouraged, to take advantage of original writs, notwithstanding that by an appeal a plain, speedy and adequate remedy is furnished.
There are no special or peculiar circumstances in the present case which should take it out of the operation of the rule governing the issuance of the writ.