Onesti v. Freelon

61 Cal. 625, 1882 Cal. LEXIS 677

• Court: California Supreme Court
• Decided: October 30, 1882
• Docket: No. 7,235
• Status: Published

Opinion

The Court:

The Court below made an order granting a motion to dismiss the writ of review, and affirming a judgment of the Municipal Court of Appeals. The allegations in the petition, and the relief demanded, are pointed to said Thomas W. Freelon, Judge of the Municipal Court of Appeals of the City and County of San Francisco; the writ of review was directed to said Thomas W. Freelon, as such Judge, and the return was made by him.

According to Section 1070, Code Civil Procedure, the writ should have been directed to the Court instead of the Judge, and the return should have been made by the Clerk. The proceeding contemplated by the Code is a proceeding against the tribunal instead of the Judge.

The motion to dismiss was made on the grounds that the writ was improperly issued, and for want of prosecution. The order granting the motion does not state the grounds on which it was granted; therefore we presume it was on both grounds stated in the motion.

Where a motion is granted dismissing a proceeding of this kind, on the grounds that the writ was improperly issued and for want of prosecution, the merits of the case (further than may necessarily result from granting the motion) are not for adjudication. Therefore, so much of the order as affirmed the judgment of the Municipal Court of Appeals was made without authority of law, and was error. The capse is remanded with instructions to strike out of the order the objectionable clause, and in all other respects the order is affirmed.