Conlan v. Superior Court

107 P. 577, 12 Cal. App. 420, 1910 Cal. App. LEXIS 344

Opinion

THE COURT.

It is sought by the petitioner herein to obtain a writ of prohibition against the superior court -of the city and county of San Francisco, in an election contest pending in said court, against the petitioner, who has been declared elected to the office of police judge of said city.

It is claimed that the superior court has no jurisdiction to proceed with the contest, for the reason that the citation was not served upon petitioner.

■ The code provides (Code Civ. Proc., sec. 1119) that the citation may be served upon the party in person, or, if he cannot be found, by leaving a copy thereof at the home where he last resided. The service may be made by leaving a copy as provided in the section under the circumstances therein mentioned, and such service is constitutional and valid. (Chatham v. Mansfield, 1 Cal. App. 298, [82 Pac. 343].)

The petitioner fails to state in his petition that such service was not made by leaving a copy as provided in the section. If the question was determined by the trial court that the petitioner could not be found, such determination of that question is conclusive upon us in this proceeding. We cannot try the question collaterally. We must presume in favor of the determination of the judge of original jurisdiction. The writ of prohibition cannot be used as a writ of error to determine a question of fact which it was the province of the trial court to determine. Its sole province is to determine as to whether or not the superior court is proceeding in excess of its jurisdiction.

The writ is denied.