Opinion
Docket No. S.F. 16629.
May 1, 1942.
APPLICATION for a writ of certiorari to review a judgment of the Superior Court of Fresno County affirming a judgment of the Justice's Court of the Third Township of Fresno County convicting petitioner of violation of the Petroleum Products Fraud Prevention Law. Demurrer to petition sustained.
Rae B. Carter for Petitioner.
Earl Warren, Attorney General, Ralph H. Cowing, Deputy Attorney General, W.C. Tupper, District Attorney, and E.A. Thompson, Deputy District Attorney, for Respondents.
THE COURT.
This petition for a writ of certiorari is sought to review a judgment of conviction entered in the Justice's Court of the Third Township of Fresno County which was affirmed by the Superior Court of Fresno County and which adjudged petitioner guilty of violating the Petroleum Products Fraud Prevention Law of 1931. (Stats. 1931, p. 1313; Deering's Gen. Laws, 1937, Act 2967.) A demurrer to the writ, which is directed to the justice's court and the superior court and the judges thereof, was overruled as to the superior court by the District Court of Appeal, Third District, and thereafter a hearing was granted in this court.
The issues presented by this petition are determined by our decisions in Redlands High School Dist. v. Superior Court, ante, p. 348 [ 125 P.2d 490] (this day decided), and Portnoy v. Superior Court, ante, p. 375 [ 125 P.2d 487] (this day decided). Under the principles laid down there we hold that the writ of certiorari does not lie to review the judgment of a justice's court, where, as in this case, that judgment has been affirmed by the superior court. Since the superior court in this case was not engaged in conducting a new trial on appeal, it had jurisdiction to affirm the judgment of the court below, whether or not the justice's court had jurisdiction. ( Redlands High School Dist. v. Superior Court, supra.) The demurrer to the petition is sustained as to all respondents.
Edmonds, J., did not participate in the consideration or decision of this case.
I dissent. In my opinion, the judgment sought to be annulled by this proceeding is void for the reason that both the justice's court and the superior court exceeded their jurisdiction in rendering same, and for the reasons stated in my concurring opinion in the case of Redlands High School District v. Superior Court, ante, p. 348 [ 125 P.2d 490], this day filed, petitioner is entitled to a writ of certiorari annulling said judgment.
Petitioner's application for a rehearing was denied May 28, 1942. Carter, J., voted for a rehearing.