Cohen v. Melrose — 167 Cal. 792

Majority

p. 792

[L. A. No. 3787.

In Bank.

June 3, 1914.]

W. G. COHEN, Petitioner, v. GEORGE C. MELROSE, Justice of the Peace of Burbank Township, County of Los Angeles, State of California, Respondent.

Headnote

Certiorari—Review by Supreme Court oi Justice’s Court Judgment—Similar Proceeding Pending in Superior Court.—The supreme court will not entertain an original proceeding in certiorari to annul a judgment and orders subsequent thereto made by a justice of the peace, on the ground that the same were in excess of his jurisdiction, where a similar proceeding, based upon the same facts, duly instituted in the superior court, is pending and undetermined. Prom an adverse judgment or order of dismissal in the superior court proceeding, the petitioner would have a right of appeal to the district court of appeal; and in the event that the superior court refuses to take any action whatever in the matter pending therein, it may be compelled to do so by appropriate proceedings.

APPLICATION for a Writ of Certiorari directed to a justice of the peace of Burbank Township, County of Los Angeles.

The facts are stated in the opinion of the court.

James H. Creely, for Petitioner.

Earl E. Sidebottom, for Respondent.

This is a proceeding in certiorari instituted in this court, for the purpose of obtaining an annulment of a judgment and certain orders subsequent to judgment, given and made by the respondent, George C. Melrose, as justice of the peace of Burbank township, in the county of Los Angeles, on the ground that the same were in excess of the jurisdiction of said justice.

The writ was issued by this court without notice to the respondent. When the matter came on for hearing in this court upon the return made by the justice of the peace, it was made to appear by a demurrer to the petition filed by the respondent that the writ should not have issued. The petition for a writ shows upon its face that a proceeding in certiorari to obtain a review and an annulment of the same judgment and orders was instituted by this petitioner against this respondent in the

p. 793

superior court of Los Angeles County on the second day of March, 1914, by the filing of a verified petition therein, setting up the same facts that are alleged in the petition subsequently filed in this court. It was alleged that “the presiding justice of the said superior court refused and still refuses to issue said writ. ” It is not expressly made to- appear whether or not any judgment has been formally entered in said proceeding in the superior court.

By the filing of said petition in the superior court of Los Angeles County the proceeding for a review of the judgment and orders of the justice of the peace was duly instituted. If the final judgment has not been entered therein, and the superior court refuses to take any action whatever in the matter, it still remains that the proceeding is now pending in the superior court of Los Angeles County, -and the petitioner herein may prosecute the proceeding to final judgment therein, with a right of appeal in the event of a judgment against him, to the district court of appeal for the second appellate district. (Const., art. VI, sec. 4.) In the event that a judgment or order of dismissal has been entered, the plaintiff has the right of -appeal therefrom to said district court of appeal. In either event, this court should not entertain an original application in the matter. To the suggestion made that the superior court refuses to take any action whatever in the matter pending therein, the obvious answer is that the superior court could be compelled by appropriate proceeding to act therein.

This proceeding is dismissed, without prejudice to. any of petitioner’s rights in the proceeding pending in the superior court of Los Angeles County.

Beatty, C. J., does not participate in the foregoing.