MILIKEN et al. v. HUBER, 21 Cal. 166

Norton, J. delivered the opinion of the Court Cope, J. concurring. The plaintiffs having obtained a judgment in the District Court for Sacramento County, and more than one year having elapsed, the defendant, on a representation that the District Court had exceeded its jurisdiction by rendering a judgment against him without having acquired jurisdiction of his person, and that the time allowed by statute for an appeal had expired, procured a writ of certiorari to be issued from this Court to bring up the judgment for review.

A motion is now made to dismiss the writ, on the ground that this Court has no jurisdiction to issue it for such a purpose. This Court has only appellate jurisdiction, and is only authorized to issue the writ of certiorari in aid of such jurisdiction. (Ex parte Attorney-General, 1 Cal. 85; The People v. Shear, 7 Id. 139.) If this Court had jurisdiction to review the judgment on an appeal taken within one year after it was rendered, that jurisdiction was lost after the expiration of the year. (Haight v.

Gay 8 Cal. 297.) The general power of supervision over inferior tribunals which pertains to the Court of King’s Bench in England, pertains to the District Court in this State. The provisions of

section four hundred and fifty-six of the Civil Practice Act, that the writ of certiorari may be granted by any Court, etc., must be held to mean any Court of original jurisdiction. The Legislature could not, under the Constitution, confer such power upon this Court. Besides, by the terms of this

section of the Practice Act, the writ of certiorari cannot issue in cases where there is an appeal. If there was an appeal in this case, the limitation by statute of the right to bring that appeal within one year does not make it, after a year has been suffered to elapse without taking an appeal, a case in which there was no appeal. In any view of the case, therefore, the writ was improperly issued. If it was the exercise of an original jurisdiction to superintend the proceedings of inferior tribunals, it was the exercise of a power which does not belong to this Court.

If it was the exercise of an appellate jurisdiction, it could not be done by the proceeding of a writ of certiorari after the time to exercise the right of appeal had elapsed. An order must be entered dismissing the writ.