Baker v. Superior Court

12 P. 685, 71 Cal. 583, 1887 Cal. LEXIS 429

Opinion

McFarland, J.

—We think that the service in this proceeding was sufficient, and that the proper parties are before the court, and therefore the motion to quash is denied.

The return to the writ of review in this proceeding shows that in the case of L. H. Baker, petitioner herein, v. William Banks, defendant, pending in the court of respondent, an order was made by the court on the twenty-ninth day of December, 1886, extending the time of defendant to answer or demur until ten days after the receipt of the remittitur, in a certain other case of N. J. Pehrson v. John B. Hewitt, then pending on appeal from the court of respondent to this court. The order also contained some directions about a stay of proceedings, but we treat it as being substantially an order extending the time to plead as above stated.

It is clear that the order, so far as it attempted to extend the time to plead more than thirty days, was an excess of jurisdiction (Code Civ. Proc., sec. 1054); and it is equally clear that petitioner has no plain, speedy, and adequate remedy other than certiorari.

As this court may modify the order, we do not deem it necessary to determine whether or not it should be considered as a unit, and therefore totally void.

It is therefore ordered that the order under review be modified so as to extend the time within which the defendant in said case of Baker v. Banks may plead thirty days from and after the twenty-ninth day of December, 1886, and no further.

Sharpstein, J., and Thornton, J., concurred.