Summary
In Noble v. Superior Court, 109 Cal. 523, [42 P. 155], after citing section 1068 of the Code of Civil Procedure, it is said: "From this provision it is made manifest that three concurring requisites are essential to the issuance of the writ of review: 1. An excess of jurisdiction by the inferior tribunal, etc., exercising judicial functions; 2.
Summary of this case from Candeias v. Superior CourtOpinion
Department Two
Writ of review from the Supreme Court to review an order of the Superior Court of Fresno County setting apart personal property as exempt from execution, and ordering the sheriff to release and discharge said property from the operation and effect of an execution. M. K. Harris, Judge.
COUNSEL:
The lower court exceeded its jurisdiction in making the order setting aside the real and personal property to the insolvent and restraining the petitioners from enforcing their execution lien, as it was an attempt to determine in a summary way without pleadings or trial what title the insolvent had in the property so set aside. (Estate of Burton , 63 Cal. 36; Estate of James , 23 Cal. 417; Estate of Orr , 29 Cal. 101; Estate of Delaney , 37 Cal. 176; In re Ackerman , 80 Cal. 210; 13 Am. St. Rep. 116; In re Gilmore , 81 Cal. 240; In re Groome , 94 Cal. 72; In re Kimberly , 97 Cal. 282; Estate of McCauley , 50 Cal. 544; Code Civ. Proc., sec. 640.) The petitioners, not being parties to the action, could not appeal from the order. (Code Civ. Proc., sec. 938; Hayne on New Trials, sec. 203, and cases there cited.)
Charles S. Peery, W. P. Thompson, and Gale & Peery, for Petitioners.
L. L. Cory, for Defendant.
The petitioners are not entitled to the writ of review, as they were parties aggrieved, and could have appealed from the order. (Insolvent Act, 1880, sec. 67; Code Civ. Proc., secs. 938, 1068; Adams v. Woods , 8 Cal. 315; Fisk v. His Creditors , 12 Cal. 281; Imlay v. Carpentier , 14 Cal. 173; People v. Rosborough , 29 Cal. 415; People v. Shepard , 28 Cal. 115; Julien v. Riley , 61 Cal. 242; Black on Judgments, sec. 807; Weill v. Light , 98 Cal. 193.) Upon the granting of the order declaring James E. Hughes an insolvent debtor, the superior court obtained jurisdiction to make an order staying all proceedings against the insolvent. (Insolvent Act, 1880, secs. 6, 60; Code Civ. Proc., sec. 1465; Civ. Code, sec. 1240; Barrett v. Sims , 59 Cal. 615; Freeman on Executions, secs. 215, 197; Bandy v. Ransom , 54 Cal. 87; Hayne v. Justice's Court , 82 Cal. 284; 16 Am. St. Rep. 114.)
JUDGES: Searls, C. Britt, C., and Belcher, C., concurred. Henshaw, J., McFarland, J., Temple, J.
OPINION
SEARLS, Judge
[42 P. 156] One James E. Hughes filed his petition in insolvency in the superior court of the county of Fresno, state of California, in due form, and an order was thereupon made by the said superior court, adjudging the said James E. Hughes an insolvent debtor, and directing notice to be given, as provided by law, to the creditors of said insolvent to meet for the purpose of electing an assignee, and did then and there order that all the proceedings against said insolvent be stayed.
Thereafter the said insolvent presented a petition to the superior court asking that certain real property be set apart to him as a homestead, and that certain personal property by him owned be set apart as exempt from execution.
Notice was given of the time and place of hearing said application, and at the hearing thereof the petitioners herein (who were judgment creditors of said insolvent, and who had caused an execution to issue and be levied upon a portion of the personal property claimed as being exempt from execution) appeared and presented written objections to setting apart said personal property as exempt, and protested against the making of any order staying the execution which had been levied upon the exempt property by the sheriff of Fresno county prior to the proceedings in insolvency.
Upon the hearing of the matter the court made and entered an order or decree exempting and setting apart the homestead of the insolvent and the personal property in said order described as exempt from execution, and providing that the same shall not be in any way subject to execution, and forever staying execution against the same, and ordering the sheriff of Fresno county to release and discharge any and all of said property from the operation and effect of said execution. Thereupon the plaintiffs presented their petition to this court, setting forth substantially the proceedings in the superior court, and praying a writ of review to issue out of this court, directed to the superior court, citing it to show cause why the order complained of should not be vacated and set aside. The writ issued.
Defendant answered and demurred to the petition upon various grounds, among which are that the petitioners had a plain, speedy, and adequate remedy at law in this: That an appeal from the order in the petition set forth and sought to be reviewed herein is given said petitioners, by reason of subdivision 5 of section 67 of the Insolvent Act of 1880.
Our writ of review, which answers to the common-law writ of certiorari, "may be granted by any court except a police or justice's court, when an inferior tribunal, board, or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal nor in the judgment of the court any plain, speedy, and adequate remedy." (Code Civ. Proc., sec. 1068.)
From this provision it is made manifest that three concurring requisites are essential to the issuance of the writ of review, viz.: 1. An excess of jurisdiction by the inferior tribunal, etc., exercising judicial functions; 2. That there is no appeal; 3. That there is no other plain, speedy, and adequate remedy.
Section 67 of the same act is as follows: "An appeal may be taken to the supreme court in the following cases:. .. . 5. Against or in favor of setting apart a homestead or other property claimed as exempt from execution."
Turning to the Insolvent Act of 1880 and we find that by the terms of section 60 "It shall be the duty of the court having jurisdiction of the proceedings to exempt and set apart for the use and benefit of said insolvent such real and personal property as is by law exempt from execution; and also a homestead in the manner as provided in section 1465 of the Code of Civil Procedure."
From these provisions of the insolvent law it appears: 1. That it is made the duty of the superior court in insolvency proceedings to exempt and set aside for the use of the insolvent such personal property as is exempt from execution and also a homestead; and 2. That the order so doing or refusing so to do is appealable.
That the writ will not lie under our statutes where there is a remedy by appeal is equally settled by the Code of Civil Procedure, and by the adjudications of this court. (Faut v. Mason , 47 Cal. 7; Newman v. Superior Court , 62 Cal. 545; McCue v. Superior Court , 71 Cal. 545; Weill v. Light , 98 Cal. 193; Estate of McConnell , 74 Cal. 217.)
Proceedings in insolvent cases must be brought before the supreme court by appeal and not by certiorari. (People v. Shepard , 28 Cal. 115; Tomasini v. Superior Court , 75 Cal. 225.)
The contention of petitioners is, that they are not here objecting to the order of the court setting apart the homestead or to so much of the order as set apart the personal property exempt from execution, but only to that portion of the order which stayed the proceedings of the sheriff under execution, and required him to release and discharge such property from the operation and effect of said execution.
The answer is, that there is but one decree or order in the case, which decree sets apart the property and orders the sheriff to release and discharge the per sonal property from the operation and effect [42 P. 157] of the execution, and from this decree or order, as we have shown, an appeal lies.
Where an appeal is given from a judgment, the appellate court may correct all the errors therein detrimental to the appellant, and the fact that some portion of the judgment is without and in excess of the powers of the court is but a reason for a reversal of the judgment on such appeal.
If the theory of petitioners is correct, then it must follow that an appeal will lie to so much of the judgment as set apart the homestead and the exempt property, and a writ of review as to the residue.
Our law is not guilty of any such inconsistency. When an appeal is given from a judgment or order it is that all the errors therein affecting the rights of the appellant may be corrected. In Estate of Burton , 63 Cal. 36, In re Groome , 94 Cal. 69, and In re Kimberly , 97 Cal. 281, cited by petitioners in support of their contention, it appeared that the court below, upon applications for homesteads, proceeded to try and determine the question of title to the land sought to be set aside. Upon appeal to this court it was held in each case that the question of adverse ownership could not be considered in such a proceeding, but must be tried and determined in another form.
The question there was in principle like that presented by the case at bar.
The court below, having jurisdiction to set apart a homestead, had, in excess of its power, attempted to determine the question of adverse claims to the land sought to be homesteaded.
We find no suggestion in those cases indicating a doubt as to the right to have the question heard and determined on an appeal from the orders as made.
Had the petitioners here taken an appeal from the order of the court below, the very question they are seeking to raise here could have been determined on such appeal.
This being so, it follows that under our law the writ of review cannot be maintained, and the writ should be discharged.
For the reasons given in the foregoing opinion the writ is discharged.