82 P. 688 | Cal. Ct. App. | 1905
This is a petition for a writ of prohibition against Hon. William P. Lawlor, as judge of the superior *485 court of the city and county of San Francisco, to prohibit him from revoking an order appointing petitioner special administratrix of the estate of Inez Sexton Hutton, deceased.
On the second day of May, 1905, an order was made and signed by said judge, appointing petitioner special administratrix of the estate of deceased, and directing that special letters of administration issue to her upon filing a bond and taking the proper oath. Petitioner thereupon qualified and gave the proper bond. It is not necessary to decide the question as to whether the order appointing petitioner was made by the court or by the judge at chambers. In either case the appointment was valid. (Code Civ. Proc., secs. 1411, 1412.)
On the tenth day of May, 1905, H. W. Hutton, the surviving husband of deceased, served and filed a notice of motion to vacate and set aside the order appointing the petitioner such special administratrix, upon the ground, among others, that the order was irregularly and inadvertently made and without notice. The motion came on regularly to be heard on the eleventh day of May, 1905, the petitioner being represented by her attorney, whereupon the court, after due consideration of the matter, concluded that the order appointing the petitioner such special administratrix was irregularly and inadvertently made, without notice as prescribed by the rules of the court, and announced that it would, and it is about to, make an order setting aside and revoking the order appointing petitioner such special administratrix.
The writ of prohibition will not issue to an inferior tribunal unless it is proceeding, or is about to proceed, in excess of its jurisdiction. (Code Civ. Proc., sec. 1102.) The petitioner here accordingly sets forth, "That said order and proceeding is in excess of the jurisdiction of the said William P. Lawlor, as such superior judge, and he is without any jurisdiction to make said order upon any of the grounds stated." Jurisdiction is the power to hear and determine the subject-matter in controversy. If the law confers the power to render a judgment or decree, then the court has jurisdiction. "The question is whether, on the case before a court, its action is judicial or extrajudicial; with or without the authority of law, to render a judgment or decree upon the rights of the litigant parties. If the law confers the *486 power to render a judgment or decree, then the court has jurisdiction; what shall be adjudged and decreed between the parties, and with which is the right of the case, is judicial action by hearing and determining it." (Rhode Island v.Massachusetts, 12 Pet. 657.)
The court or the judge thereof had the power to set aside the order if it was inadvertently made. (Hall v. Polack,
Counsel for petitioner concedes that courts have the inherent power to set aside orders inadvertently made, but claims that "when the uncontroverted facts show, as matter of law, that there was no inadvertence the court below has no power to vacate its order on the ground that it was inadvertently made." This is but an argument that the court had the power to decide the matter, provided it decided right, but did not have the power to decide wrong. If it had the power to deny the motion to set aside its order alleged to have been made by inadvertence (and this is conceded) it had the power to grant it. It had the power to determine whether or not the order was inadvertently made. It had the power to decide the matter even if its decision was wrong. It is not necessary to express any opinion as to whether or not the record shows that the order was inadvertently made. If the court arrived at a wrong conclusion it was only error, which cannot be reached in this proceeding. The court was the tribunal, and the judge who heard the matter was the person provided by the laws of the state for passing upon the very question presented. The court below was the sole judge of the evidence and of the question as to whether or not the order had been inadvertently made, and its decision is conclusive as to this collateral proceeding. (Crim v. Kessing,
The case of Wiggin v. Superior Court,
In Wreden v. Superior Court,
In Woodward v. Superior Court,
It is not necessary to decide in this case whether any appeal lies from the order complained of. If no appeal lies the petitioner cannot be greatly injured. She has no statutory right to be appointed special administratrix. She can again apply upon notice and be heard the same as any one else, if the court should deem it necessary to appoint a special administrator.
The writ is denied.
Harrison, P. J., and Hall, J., concurred. *488