Opinion
Rehearing Denied Oct. 21, 1930
Hearing Granted by Supreme Court Nov. 20, 1930
Petition by Mary C. De Mund for writ of certiorari to the Superior Court in and for the County of Los Angeles, and Hon. J.O. Moncur, Judge, to review an order of respondent court appointing a referee in an action by Thomas A. Hughes against petitioner. Respondents moved to dismiss the proceeding for the reason that the record was incomplete.
Motion to dismiss and writs of certiorari and prohibition denied.
COUNSEL
Hewitt, McCormick & Crump, of Los Angeles, for petitioner.
Charles E. Hobart and Alfred W. Hare, both of Los Angeles, for respondents.
OPINION
GATES, Justice pro tem.
It is made to appear that on November 21, 1922, Thomas A. Hughes, as plaintiff, commenced an action in the respondent superior court against petitioner herein. The plaintiff in that action alleged and claimed a copartnership in the buying and selling of real estate, and asked for an accounting and dissolution. Subsequently the case came to trial before the respondent judge, who was presiding in the respondent court pursuant to assignment of the judicial council. On January 30, 1924, Judge Moncur made certain findings of fact and conclusions of law, in and by which he found the existence of the partnership, that it owned the properties set forth in the complaint, and concluding therefrom that plaintiff was entitled to an accounting and dissolution. Pursuant to these findings and conclusions an interlocutory decree was filed and entered. Thereafter a motion for new trial was made and ordered dismissed. An appeal was taken from this so-called order of dismissal, with the result that the District Court of Appeal held that the order purporting to dismiss the motion for a new trial was, in effect, an order denying the motion, and that no right of appeal lay therefrom, the order being reviewable upon an appeal from the final judgment. Hughes v. De Mund, 70 Cal.App. 265, 267, 233 P. 93. On April 7, 1925, an order was made by respondent court appointing a referee to take an accounting. Subsequently the referee filed his report, which was excepted to by the plaintiff Hughes. On November 4, 1925, the respondent court, by one of its judges, Hon. Frank C. Collier, rendered a final judgment. This judgment was based upon the findings of fact, conclusions of law, and interlocutory decree rendered by Judge Moncur. Thereafter Hughes, being dissatisfied with this judgment, appealed therefrom. On January 21, 1929, the District Court of Appeal reversed the judgment rendered by Judge Collier. Hughes v. De Mund, 96 Cal.App. 365, 274 P. 405. A petition for rehearing was denied by the District Court of Appeal as well as by the Supreme Court. On March 19, 1930, plaintiff Hughes moved for an appointment of a referee in Hughes v. De Mund, which motion was presented to and granted by Judge Moncur. Objection was made to the granting of this motion by petitioner herein upon the ground that the court had no jurisdiction to entertain the same. The objections were overruled, and the order of appointment was made March 31, 1930. It is the order last mentioned of which petitioner now complains. She further alleges that the respondent court will proceed to hear the cause, thus preventing her from having a trial de novo.
Respondents have demurred generally and specially and have also filed an answer denying many of the allegations of the petition. They have likewise moved to dismiss the proceeding upon the ground that there is not before this court a complete record of the proceedings had in the superior court. To this motion we shall first direct our attention.
It is respondents’ contention that there was not furnished this court a transcript of the full record and proceedings had in the cause in the superior court; that the entire record and evidence must be examined to determine the question of jurisdiction, and that it is incumbent upon a person seeking the writ to furnish the record to be reviewed and to use diligence in so doing. As a general proposition, the rule is well settled that it is the duty of the person seeking a writ of review to see that the return is made to the writ and a complete record of the inferior tribunal certified to the court issuing the writ, and, unless due diligence is used to this end, the petition for a writ of review must be dismissed. I.X.L. Lime Co. v. Superior Court, 143 Cal. 170, 76 P. 973, 974; Warren v. Superior Court, 144 Cal. 287, 77 P. 910; James v. Police Court, 39 Cal.App. 362, 178 P. 867; Goodrich v. Superior Court, 92 Cal.App. 695, 268 P. 669. See, also, 4 Cal.Jur. 1100, where the rule is succinctly stated. Our Supreme Court, in the case of I.X.L. Lime Co. v. Superior Court, supra, stated the rule as follows: "The authorities recognize that, although it is the duty of the officers to whom the writ is directed to prepare their return, and although they may be compelled summarily to make a return, yet it is incumbent upon the prosecutor of the writ, rather than the party adverse to him, to see that the return is made, to invoke the aid of the court to compel compliance with the mandate of the writ, and to use due diligence in having the complete record made out, and that his proceeding will be dismissed if he fails to use diligence in the prosecution thereof."
We are unable to agree with respondents’ contention that in every certiorari proceeding the evidence adduced before the court whose action is sought to be reviewed must be set forth in the return and reviewed by the court. The correct rule is stated in 4 California Jurisprudence, 1111, § 71, as follows: "The review extends not only to the whole of the record of the court below, but even to the evidence itself where necessary to determine the jurisdictional facts." (Italics ours.) The above rule is pointedly stated by the Supreme Court in Estate of Paulsen, 179 Cal. 528-530, 178 P. 143, 144, as follows: "The review under the writ extends, ‘not only to the whole of the record of the court below, but even to the evidence itself, where necessary to determine the jurisdictional fact,’ " citing Schwarz v. Superior Court, 111 Cal. 106, 112, 43 P. 580, See McClatchy v. Superior Court, 119 Cal. 413, 418, 51 P. 696, 39 L.R.A. 691, and Golden Gate Tile Co. v. Superior Court, 159 Cal. 474, 480, 114 P. 978, for further statements of the above rule. The true rule to be deduced from the authorities is that, if the jurisdictional facts do not appear of record, then such facts or such evidence of them as may be necessary to determine whatever question as to the jurisdiction of the tribunal may be involved must be set forth in the return. Miller & Lux v. Board of Supervisors, 189 Cal. 254, 208 P. 304, 312; In re Madera Irrigation District, 92 Cal. 296, 28 P. 272, 675, 14 L.R.A. 755, 27 Am.St.Rep. 106.
There are many cases where it is necessary that the evidence before the lower tribunal be placed before this court before a proper adjudication of the question of jurisdiction can be had. This is very clearly illustrated by our Supreme Court in Miller & Lux v. Board of Supervisors, supra. The court in that case, among other things, said: "We have constantly under review proceedings in which various boards and inferior courts are called upon to exercise a special jurisdiction, and it has uniformly been held in such cases, such as proceedings from the Industrial Accident Commission, from the Railroad Commission, from the medical board in cases involving the taking away of the license of a medical practitioner, in the case of proceedings before the real estate board to deprive a real estate agent of his license, and in contempt proceedings, that the courts will inquire into the question as to whether or not there was any evidence whatever to prove the jurisdictional facts, and in the absence of such evidence have annulled the order of the tribunal whose decision was under review." Does the instant proceeding fall within any of these cases? It does not. It will clearly appear by what we will hereafter say that a consideration of the evidence adduced at the former trial is immaterial and unnecessary to a correct determination of this matter. And, furthermore, it may be said, in passing, that, if the return made is defective, which it is not, this court may in its discretion order a further return to be made. Code Civ.Proc., § 1075; James v. Police Court, supra; Stumpf v. Board of Supervisors, 131 Cal. 364, 63 P. 663, 82 Am.St.Rep. 350.
The next point to determine is whether this is a proper matter in which to grant a writ of certiorari. It is well settled that certiorari lies only where it is made to appear that there is (a) an excess of jurisdiction of an inferior tribunal; (b) no appeal; (c) no other plain, speedy, and adequate remedy. If any of these essentials is missing, the writ will not issue. Postal, etc., Co. v. Superior Court, 22 Cal.App. 770, 136 P. 538; Noble v. Superior Court, 109 Cal. 523, 42 P. 155; Department of Public Works v. Superior Court, 197 Cal. 215, 239 P. 1076; Stoddard v. Superior Court, 108 Cal. 303, 41 P. 278. If the petitioner in the instant case has a remedy by appeal, her application should be denied. The rule is clearly stated in Stoddard v. Superior Court, supra, as follows: "It may be readily admitted that the court had no jurisdiction to make the order; but, as the order is appealable, certiorari will not lie, because it lies only where ‘there is no appeal.’ Code Civ.Proc. § 1068. *** With respect to certiorari, the language of the Code is: ‘When *** there is no appeal, nor in the judgment of the Court any plain, speedy and adequate remedy.’ Section 1068. In Stuttmeister v. Superior Court, 71 Cal. 322, 12 P. 270 the authorities on the point are collated; and it was there declared that: ‘The writ (certiorari) will not lie when there is an appeal from the action complained of; ’ and, ‘The writ is not given in lieu of an appeal, but only to review errors in excess of jurisdiction, for which an appeal does not lie.’ " (Italics ours.) See White v. Superior Court, 110 Cal. 54, 57, 42 P. 471; Southern Cal. R. Co. v. Superior Court, 127 Cal. 417, 59 P. 789; Cline v. Superior Court, 35 Cal.App. 150, 169 P. 453; Helbush v. Superior Court, 99 Cal.App. 501, 278 P. 1062, wherein the doctrine enunciated in the Stoddard case is discussed and approved.
The petitioner contends that the judgment of reversal in Hughes v. De Mund, 96 Cal.App. 365, 274 P. 405, 407, was an unqualified reversal of the judgment, that is, it was reversed for all purposes; that it then became the duty of the trial court to hear the cause de novo as to all issues, and that the decision of the District Court of Appeal was tantamount to a mandatory injunction commanding the trial court to try anew all of the issues involved therein. Petitioner further contends that the order confirming the appointment of a referee is void, and that the court exceeded its jurisdiction when it made the order. While it is true that the Appellate Court in its decision stated that "there can be no proper accounting until it has first been determined whether a partnership exists between the parties and what property belongs to the partnership," we cannot say at this time that the trial court will not so determine before the conclusion of the case. The rule is elementary that it is presumed that the trial court will follow the decision of the District Court of Appeal upon a retrial of a cause. The appointment of a referee is one of the intermediary steps in the trial. Huneke v. Huneke, 12 Cal.App. 199, 205, 107 P. 131. It is nothing more than a preliminary step preceding the rendering of judgment. It is well settled that in the case of a trial by the court without a jury "the finding of the referee *** upon a whole issue must stand as the finding of the court." Code Civ.Proc. § 644; Faulkner v. Hendy, 103 Cal. 15, 36 P. 1021. But in the case of a special referee to report facts the report has no such effect. It is in the nature of a special verdict. Judgment does not follow as a matter of course, and the action of the court must be invoked before it may be entered. 22 Cal.Jur. 697, 698; Fredendall v. Shrader, 45 Cal.App. 719, 188 P. 580. While it is true that an order appointing a referee is not appealable (Fallon v. Brittan, 84 Cal. 511, 24 P. 381; Gates v. Walker, 35 Cal. 289), the appellate tribunal may review certain acts of the court in relation to a referee and his report on an appeal from a final judgment. 22 Cal.Jur. 702. If there has been an erroneous order of reference, the petitioner should except to it and then have it reviewed on appeal, assuming, of course, that the final judgment is against her and she prosecutes an appeal therefrom. Shain v. Peterson, 99 Cal. 486, 33 P. 1085; Joshua Hendy Mach. Works v. Pacific, etc., Co., 99 Cal. 421, 33 P. 1084. Therefore, it will be clearly seen that, if the respondent court has erroneously confirmed the appointment of a referee, petitioner may have such act reviewed in an appeal from an adverse final judgment. Furthermore, the trial court may wholly disregard the special finding of the referee, and no harm will be done.
It is plain that the court has jurisdiction of the parties and of the subject-matter, and, even though it may be proceeding irregularly, which point we are not deciding, we cannot annul the order complained of for the reasons above stated. Even though petitioner’s contention that the order in question is erroneous and void be sustained— the court having jurisdiction of the parties and the subject-matter— the trial court nevertheless has the authority, the power, to decide the question submitted to it, incorrectly as well as correctly. 4 Cal.Jur. 1036. Where the lower court, as in the instant case, has jurisdiction of the subject-matter of the action, and makes error during the course of the trial or in its final decision, such error is correctable, not through a jurisdictional writ, but solely by appeal. Camm v. Justice’s Court, 35 Cal.App. 293, 170 P. 409; Rich v. Superior Court, 31 Cal.App. 689, 161 P. 291. The case of Putman v. Superior Court (Cal.Sup.) 286 P. 425, 428, which was an application for a writ of prohibition, is highly illuminative of the present case. The court there held that it was immaterial when the order of reference was made, the contention having been that the existence of the copartnership had not been established. The court further held: "That whatever error the trial court may have been minded to commit or to persist in during the trial before it is a matter which may not be the subject of determination by means of the particular writ herein sought." In short, a writ of certiorari cannot be used as a substitute for an appeal. Valentine v. Police Court, 141 Cal. 615, 75 P. 336. The court not having acted in excess of its jurisdiction, its order cannot be interfered with by this extraordinary remedy. Dahlgren v. Superior Court, 8 Cal.App. 622, 97 P. 681.
The case of Diamond v. Superior Court, 189 Cal. 732, 210 P. 36, cited by petitioner, does not sustain her contention. It is pointed out in that case that the respondent court had jurisdiction to determine the motion for a new trial, but that the exercise of its power to grant the motion was limited to the grounds specified in the statute; that when it granted the new trial for a cause not so designated it acted without and in excess of its jurisdiction. It was also explained by the court that since the amendment of section 963 of the Code of Civil Procedure (Stats.1915, p. 209) an appeal no longer lies from an order granting a new trial in an action tried by the court.
As to petitioner’s contention that a writ of prohibition would be proper, what we have heretofore said as to the adequacy of her remedy by appeal and the rule set forth by the Supreme Court in Putman v. Superior Court, supra, is a sufficient answer thereto.
Motion to dismiss denied. Order affirmed. Writ of prohibition denied.
We concur: WORKS, P.J.; IRA F. THOMPSON, J.