Conner v. Superior Court

California Court of Appeal

Conner v. Superior Court

20 P.2d 964, 131 Cal. App. 81, 1933 Cal. App. LEXIS 794

CourtCalifornia Court of Appeal

DecidedApril 7, 1933

DocketDocket No. 8887.

StatusPublished

This text of 20 P.2d 964 (Conner v. Superior Court) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Conner v. Superior Court, 20 P.2d 964, 131 Cal. App. 81, 1933 Cal. App. LEXIS 794 (Cal. Ct. App. 1933).

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Opinion

WORKS, P. J.

One of the judges of respondent court was made a party respondent by petitioner but his name has been omitted from the title of the proceeding at the head of this opinion for the reason that he is not a proper party. The writ of review lies against a board or tribunal and not against its members. This rule, has been announced by the courts with discouraging frequency.

The writ was asked for on the ground that respondent court had exceeded its jurisdiction in revoking the probation which had theretofore been granted petitioner *82 after his conviction of a penal offense. It is said that there was no evidence whatever taken by respondent which afforded support for the order of revocation, and it is in this way that the question of jurisdiction is claimed to arise.

The order of revocation was immediately followed by judgment and sentence. Because of this fact the writ does not lie. It would be as proper to issue the writ of review after an order sustaining a demurrer to a complaint without leave to amend, judgment for defendant following, as to issue it after an order revoking probation, judgment thereupon following, for in either case the order claimed to be wrongful could be assailed as error upon appeal from the judgment. It is well understood that the writ of review does not lie where there is a remedy by appeal.

Writ of review discharged.

Stephens, J., and Archbald, J., pro tem., concurred.

A petition for a rehearing of this cause was denied by the - District Court of Appeal on May 2, 1933, and an application by petitioner to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 1, 1933.

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WORKS, P. J.

One of the judges of respondent court was made a party respondent by petitioner but his name has been omitted from the title of the proceeding at the head of this opinion for the reason that he is not a proper party. The writ of review lies against a board or tribunal and not against its members. This rule, has been announced by the courts with discouraging frequency.

The writ was asked for on the ground that respondent court had exceeded its jurisdiction in revoking the probation which had theretofore been granted petitioner *82 after his conviction of a penal offense. It is said that there was no evidence whatever taken by respondent which afforded support for the order of revocation, and it is in this way that the question of jurisdiction is claimed to arise.

The order of revocation was immediately followed by judgment and sentence. Because of this fact the writ does not lie. It would be as proper to issue the writ of review after an order sustaining a demurrer to a complaint without leave to amend, judgment for defendant following, as to issue it after an order revoking probation, judgment thereupon following, for in either case the order claimed to be wrongful could be assailed as error upon appeal from the judgment. It is well understood that the writ of review does not lie where there is a remedy by appeal.

Writ of review discharged.

Stephens, J., and Archbald, J., pro tem., concurred.

A petition for a rehearing of this cause was denied by the - District Court of Appeal on May 2, 1933, and an application by petitioner to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 1, 1933.

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Bluebook (online)

20 P.2d 964, 131 Cal. App. 81, 1933 Cal. App. LEXIS 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conner-v-superior-court-calctapp-1933.