Dezerillo v. Superior Court — 59 Cal. 180

Majority

p. 180

[No. 7,667.

Department Two.]

J. DEZERILLO v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO.

Headnote

Certiorari—Jurisdiction—Notice oe Filing.—Application for a writ of certiorari to review an order of the Court refusing to strike out a hill of costs on the ground that the same was filed too late.

Held: The Court had jurisdiction to determine the motion, and the writ therefore denied.

Application for a writ of certiorari.

E. B. Dralce, for Plaintiff.

W. L. Metcalfex for Defendant.

This is an application for a writ of review. The action of Murphy v. Dezerillo was commenced in the Justice’s Court, and after judgment was appealed to the Superior Court, where, after trial, judgment went for plaintiff July 28th, 1880. August 4th, 1880, defendant served upon plaintiff" notice of motion for new trial, a bill of exceptions was settled, and plaintiff’s counsel participated in the argument thereof. December 16th, 1880, plaintiff filed his memorandum of costs and disbursements. No formal notice of the decision was served by defendant upon plaintiff, nor any notice thereof, other than such as is above indicated. The defendant (petitioner) afterwards moved the Court to strike out the bill of costs, on the ground that plaintiff had actual notice of the decision when the notice of motion for new trial was given, and that the bill was not filed within five days thereafter.

This writ issues only where the tribunal has exceeded its jurisdiction and there is not a plain, speedy, and adequate remedy.

We are of opinion that the Court had jurisdiction to determine the motion, and therefore the application is denied.