Hamberger v. Police Court

Plaintiff brought this proceeding in the superior court of the county of Fresno for the purpose of securing a writ to issue out of said court, prohibiting the police court of the city of Fresno and the judge thereof from proceeding with the trial of an action then pending in said police court, upon an account against plaintiff herein for $121.65 for goods sold to said plaintiff.

Defendants filed a general demurrer to plaintiff’s complaint, and the court sustained the same, and entered judgment denying plaintiff’s application for a writ of prohibition. From the judgment plaintiff has appealed, and the only question presented by the appeal is as to the correctness of the ruling of the court sustaining the demurrer.

The ruling of the court was clearly correct. The writ of prohibition will not issue to an inferior tribunal or officer, acting without or in excess of the jurisdiction of such tribunal or officer, unless the aggrieved party be without a plain, speedy and adequate remedy in the ordinary course of law. (Code Civ. Proc., secs. 1102, 1103; Levy v. Wilson, 69 Cal. 105 , [ 10 Pac. 272 ]; Powelson v. Lockwood, 82 Cal. 613 , [ 22 Pac. 143 ]; Murphy v. Superior Court, 84 Cal. 592 , [ 24 Pac. 310 ]; Strouse v. Police Court, 85 Cal. 49 , [ 24 Pac. 747 ]; Grant v. Superior Court, 106 Cal. 324 , [ 39 Pac. 604 ] ; McDonald v. Agnew, 122 Cal. 448 , [ 55 Pac. 185 ]; Lindley

An appeal lies to the superior court, both upon questions of law and fact, from any judgment rendered by a police court in a civil action. (Code Civ. Proc., secs. 974, 975.) If the appeal be upon questions of law alone, an expeditious method of settling the statement is provided (Code Civ. Proc., see. 975), and upon such appeal the superior court may review all orders affecting the judgment appealed from.

In the case at bar the judgment sought against appellant in the police court was an ordinary money judgment for goods sold. That an appeal from such a judgment is a remedy in the ordinary course of law, plain, speedy and adequate, cannot be doubted. (Holbrook etc. v. Superior Court, 106 Cal. 589 , [ 39 Pac. 936 ]; Powelson v. Lockwood, 82 Cal. 613 , [ 23 Pac. 143 ] ; Murphy v. Superior Court, 84 Cal. 592 , [ 24 Pac. 310 ]; Strouse v. Police Court, 85 Cal. 49 , [ 24 Pac. 747 ]; Broder v. Superior Court, 103 Cal. 124 , [ 37 Pac. 191 ] ; Grant v. Superior Court, 106 Cal. 324 , [ 39 Pac. 604 ] ; Lindley v. Superior Court, 141 Cal. 220 , [ 74 Pac. 765 ]; Valentine v. Police Court, 141 Cal. 616 , [ 75 Pac. 336 ]; McAdoo v. Sayre, 145 Cal. 344 , [ 78 Pac. 874 ]; McAneny v. Superior Court, 150 Cal. 6 , [ 87 Pac. 1020 ].)

The judgment is affirmed.

Cooper, P. J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 10, 1910.

Beatty, C. J., dissented from the order denying a rehearing in the supreme court, and filed the following opinion on the third day of March, 1910:

I dissented from the order denying a rehearing of this cause at the time it was made, and desire now to state the reasons for my dissent. It seems plain to me that the decision of the district court of appeal—which

That the framers of our several state constitutions have at all times held the same high estimate of the importance of this remedy that has for centuries prevailed in England is abundantly proved by the fact that from the organization of the supreme court in 1849 to the present day there has never been an hour when a person invoking the remedy had not the right, by the plain terms of the constitution, under all its changes, to bring his cause to this court for a final adjudication in one form or another. By the constitution of 1849 the supreme court was invested with original and sole jurisdiction to issue the writ of prohibition, and thus was imposed upon it a corresponding obligation to allow the writ, in a proper case, certainly to any person beneficially interested, if not, as in England, to any citizen of the state, suing for the benefit of the public. By the constitution of 1879 the superior court was invested with original jurisdiction concurrent with that of the supreme court in prohibition, and although the supreme court was not then given in express terms any appellate jurisdiction where the original proceeding was commenced in the superior court, there seems never to have been any question of its right to review the decision of the superior court when the appeal was taken. (McDonald v. Agnew, 122 Cal. 448 , [ 55 Pac. 125 ]; Powelson v. Lockwood, 82 Cal. 613 , [ 23 Pac. 143 ].)

But if there ever had been any question of the final appellate or original jurisdiction of this court in cases of prohibition, under the constitution of 1879, the question has been set at rest and all uncertainty .ended by the recent amendments creating the district courts of appeal and defining their jurisdiction. Under those amendments the supreme court and the superior court retain their concurrent jurisdiction of the original proceeding, and the district courts of appeal are invested with both original and appellate jurisdiction, which can only mean that an appeal lies to those courts in original proceedings commenced in the superior courts, and that this court may, and in a proper case must, review and reverse the decision of the district court of appeal, if erroneous.

This is a proposition to which I cannot assent, and least of all in its application to a class of cases which so largely partake of a public character. It is stated by counsel for appellant in his petition for a rehearing that the question as to the civil jurisdiction of the police court of the city of Fresno has long been the subject of vexatious controversy among the members of the local bar. If this is so it is especially important, as it is in all doubtful cases of this sort, that the question should be authoritatively settled by a decision of this court; for the more doubtful such a question is the more it becomes a public question, and the more necessary that it should be set at rest, not only for the benefit of all who are liable to be harassed by the exercise of the asserted jurisdiction if unlawful, but equally for the benefit of those who may have occasion to invoke it, if lawful.

Without dwelling further on the general considerations which sustain the policy of the framers of the constitution in securing the right of all persons, menaced by a threatened usurpation of judicial authority, to invoke the protection of this court directly or by appeal, I wish to notice briefly the eases cited as authority for the decision of the district court of appeal. Most of them are not in point, for they were decisions in original proceedings commenced in this court to prohibit the superior court or judges of those courts from exercising jurisdiction in matters which could be brought here for review on appeal. Of course, in such cases the appeal would secure to the petitioner as full a review in this court of the question of jurisdiction as he could have in prohibition, and was therefore in most cases an adequate remedy. This circumstance marks the wide distinction between all that class of cases and this case in which the petitioner is remitted to an appeal which ends in the superior court, a court with final appellate jurisdiction to decide whether a defendant in ■an action properly brought before it owes $121—but not the court of last resort upon a question of jurisdiction.

The earliest of these was Powelson v. Lockwood, 82 Cal. 613 , [ 23 Pac. 143 ], That case, however, does not decide the point stated in the first syllabus. What it decides, and all that it decides, is that prohibition does not lie to correct errors of procedure in actions of which an inferior court has jurisdiction. The case, which was an appeal from a judgment of a superior court denying the writ of prohibition, was decided upon its merits, upon the ground, that is to say, that the justice of the peace, although he may have erred in denying the petitioner a jury trial, had not exceeded his jurisdiction—a proposition sustained by numerous decisions of this court rendered before and since that decision. The next case in order of time was Strouse v. Police Court, 85 Cal. 49 , [ 24 Pac. 747 ]. That was an original proceeding in this court, and absolutely the correct proceeding, to test the validity of a municipal ordinance, for the alleged violation of which the petitioner was being prosecuted. The decision, after quoting section 1103 of the Code of Civil Procedure, is condensed into five lines of the report, and consists entirely of a citation of Levy v. Wilson, 69 Cal. 105 , [ 10 Pac. 272 ], which was a proceeding against the superior court in a matter reviewable on appeal to this court. The fact that Strouse's appeal would end in the superior court, and Levy’s appeal would come to » this court seems not to have been suggested or considered in that case as affecting the question of remedy. The ease of Valentine v. Police Court, 141 Cal. 616 , [ 75 Pac. 336 ], was a case on the facts for certiorari and not prohibition, though the petitioner did pray for both writs. It was decided on the merits as a proceeding in certiorari, and it was •also shown that aside from the question of other adequate remedy it was not a case for prohibition. In passing it was said incidentally: “It is also settled that prohibition cannot be resorted to where, as here, there is a plain, speedy and adequate remedy by appeal” (to the superior court), citing White v. Superior Court, 110 Cal. 54 , [ 42 Pac. 471 ]. The

It seems to me that the decision in the Strouse case was so plain a renunciation of the original jurisdiction of this court that it cannot be regarded as authority, and the other cases are scarcely in point. Certain it is that no consideration has been given in any of the cases cited to the point I am insisting upon here—that when the constitution gives the district courts and this court appellate jurisdiction in a certain case—as in prohibition—we cannot, upon any excuse, remit a suitor in that ease to the final judgment of a subordinate tribunal.