Drapeau v. Superior Court

L. C. DRAPEAU, as Building and Loan Commissioner, etc., Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.

COUNSEL

McKee, Tasheira & Wahrhaftig for Petitioner.

No appearance for Respondents.

OPINION

The Court.

Application for a writ of certiorari to review and annul an order made by the superior court directing the Building and Loan Commissioner to comply with an order theretofore made by said court in a special proceeding instituted pursuant to the provisions of the so-called Building and Loan Act, authorizing the [5 Cal. App. 2d 33] consummation of a transaction relating to certain real property on which the Union Building and Loan Association, then and now in liquidation, held a deed of trust. [1] Section 1068 of the Code of Civil Procedure provides that a writ of certiorari may be granted where a court "has exceeded its jurisdiction ... and there is no appeal, nor ... any plain, speedy, and adequate remedy"; and in conformity therewith it has been held that even though it appear that a court be without jurisdiction to make an order or decree, certiorari will not lie to review the same if said order or decree is appealable; that the remedy is by way of appeal. (Stoddard v. Superior Court, 108 Cal. 303 [41 P. 278]; Stuttmeister v. Superior Court, 71 Cal. 322 [12 P. 270]; Helbush v. Superior Court, 99 Cal. App. 501 [278 P. 1062].) [2] In our opinion the order which petitioner seeks to have annulled must be construed as "a special order made after final judgment" within the meaning of section 963 of the Code of Civil Procedure, and therefore appealable. Upon that ground the application is denied.