August Belmont & Co. v. Superior Court — 117 Cal. App. 450

Majority

p. 450

[Civ. No. 8166.

First Appellate District, Division One.

October 14, 1931.]

AUGUST BELMONT & COMPANY et al., Petitioners, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.

Thomas E. Davis for Petitioner.

No appearance for Respondents.

The application alleges in substance that petitioners are copartners and residents of the state of New

p. 451

York; that in a certain action brought in this state against petitioners a summons was issued which, together with a copy of the complaint, was served on the commissioner of corporations; that said commissioner was not authorized to accept such service except in actions arising out of or founded upon actual fraud, and the action was not one of this character. A motion to quash the service was made and denied. The present proceeding followed.

While we are at a loss to understand under what authority the commissioner of corporations accepted service, prohibition is not the proper remedy. The error of the superior court in denying petitioners’ motion to quash the service of summons may be reviewed on appeal from any adverse judgment rendered. It is well settled that where a person has a right of appeal and such appeal will afford an adequate and complete remedy, such error can be corrected on appeal and the writ does not lie. (Lumas Film Corp. v. Superior Court, 89 Cal. App. 384 , 386 [ 264 Pac. 792 ]; Bullard v. Superior Court, 106 Cal. App. 513 , 516 [ 288 Pac. 629 ]; 21 Cal. Jur. 587.)

The application for the writ is denied.

Cases cited

Lumas Film Corp. v. Superior Court 89 Cal. App. 384 Cal. Dist. Ct. App. 1928-02-21 at 386 p. 451
Bullard v. Superior Court 106 Cal. App. 513 Cal. Dist. Ct. App. 1930-06-17 at 516 p. 451