Cahill v. Superior Court of S.F.

This is a proceeding in mandamus to compel the superior court and Frank J. Murasky, as judge thereof, to hear and consider a motion of the petitioners duly presented to said court, to modify, and in part vacate, a previous order of the court in the matter of the estate of Patrick H. Cahill, deceased,- setting apart a homestead to the widow of the deceased out of the property of the estate.

The motion for the modification was made and presented within six months after the order setting apart the homestead When the motion was presented to the superior court the widow appeared thereto and objected to the hearing. The objections were,—1. That the court had no jurisdiction to vacate the former order; and 2. That the facts stated as the grounds of the motion did not justify a modification or vacation of the order.

The ground last stated furnished no reason for refusing to hear and consider the motion. It was addressed to the merits, and could only be considered after the court had, upon the consideration of the first objection, decided that it had jurisdiction to entertain the motion and make the order applied for. Both objections were taken up'together and argued and submitted simultaneously. This was manifestly done merely for convenience, and in order to avoid the delay that would be occasioned by another hearing, in ease the objection to the jurisdiction should be overruled. The Objection to the jurisdiction was not based on any facts, nor upon any defect in the service of the notice on the widow, but solely on the propo

Another objection is made here to our consideration of the question of the power of the court to modify the order. It is, that the court below has determined that it did not have jurisdiction, and that that determination is conclusive and cannot be reviewed in this court upon this proceeding. The order refusing to vacate or modify the order setting apart the homestead is not appealable. (Estate of Cahill, 142 Cal. 628 .) An appeal from the original order would have been useless, for, as it was made without notice or contest, there could be no bill of exceptions showing the facts on which it was based. Therefore, if the decision of the court, that it did not, as matter of law, have jurisdiction to act, is conclusive as to the law, the petitioners are without remedy, although the original order may have been manifestly erroneous, or may have been fraudulently obtained, and the court may have been utterly mistaken in its view that it was without power to modify it. That it was mistaken in that view is definitely settled by the decision of this court in Levy v. Superior Court, 139 Cal. 590 , holding that the superior court has power to vacate such an order under section 473 of the Code of Civil Procedure.

This court has held that where the jurisdiction of the superior court to try a cause or hear an appeal depends on the existence of certain facts, and that court has, upon evidence consisting either of affidavits or of the record, made its determination as to the facts, although erroneously, this court cannot in mandamus proceedings go behind this determination, and itself consider from evidence whether or not the jurisdiction existed; and this seems to be the law even where

The distinction between this class of cases and the case at bar is this: In all these cases the superior court was called upon to consider either the sufficiency of certain facts established by the record, or certain facts determined by that court upon evidence properly addressed to it, to give it jurisdiction to proceed with the particular case then before the court, and with its decision, after such consideration, this court cannot interfere by mandamus. In the case at bar there was no question of fact involved, and the superior court decided that, as a matter of law purely, it could not in any case vacate an order made under .the provisions of section 1465 of the Code of Civil Procedure setting apart a homestead. This was a

The code provides that the writ of mandate may be issued to “compel the performance of an act which the law specially enjoins, as a duty resulting from an office.” (Code Civ. Proc., sec. 1085.) The law specially enjoins upon the superior court, and upon the judge thereof, the duty of hearing and determining all matters which are within its jurisdiction and which come properly before it. The motion under consideration did come properly before that court, but the judge decided, as matter of law, and upon the statute and constitution only, that the court had no power in any ease to make orders of the kind there applied for, and upon that ground only refused to proceed to the merits of the application. If the person holding the office could thus decide what were the duties pertaining thereto which the law specially enjoins him to perform, the writ of mandate would be practically useless. The decision refusing to act which gives occasion for the writ would also furnish sufficient cause for denying it. As was well said in Temple v. Superior Court, 70 Cal. 211 , “The court cannot, by holding without reason that it has no jurisdiction of the proceedings, divest itself of jurisdiction and evade the duty of hearing and determining it.” To the same effect are Merced M. Co. v. Fremont, 7 Cal. 130 ; Ortman v. Dixon, 9 Cal. 23 ; Heinlen v. Cross, 63 Cal. 44 ; People v. Barnes, 66 Cal. 594 ; Crocker v. Conrey, 140 Cal. 213 .

The respondent further claims that the petitioners are barred of their remedy in. mandamus by reason of their laches.

Laches is defined as “Such neglect or omission to assert a right as, taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity.” (18 Am. & Eng. Ency. of Law, 2d ed., p. 97.) “In determining what will constitute such unreasonable delay, regard will be had to circumstances, which justify the delay, to the nature of the case and the relief demanded, and to the question whether the rights of the defendant, or of other persons, have been prejudiced by such delay.”’ (Taylor v. Bayonne, 57 N. J. L. 378 ; People v. Syracuse, 78 N. Y. 56 ; Chinn v. Trustees, 32 Ohio St. 236 ; 19 Am. & Eng. Ency. of Law, 2d ed., p. 755;

Let the writ issue as prayed for.

Van Dyke, J., Angellotti, J., Henshaw, J., Lorigan, J., and Beatty, C. J., concurred.

I dissent. In the first place, if what respondent did could be construed as a refusal to act for want of jurisdiction, it does not appear that respondent had jurisdiction. In Levy v. Superior Court, 139 Cal. 590 , and cases there cited, it was merely held that section 473 of the Code of Civil Procedure, which provides for relieving a party from the judgment or order taken against him “through his mistake, inadvertence, surprise, or excusable neglect,” applies to certain probate orders, and that only under said section can orders not appealable be reached. But in the case at bar the petition to set aside was not based on section 473, but merely on certain alleged errors in the order sought to be vacated. In the second place, the respondent acted in the matter, and ordered that “the motion to vacate