Butler v. Superior Court

— This is an application “for a writ of review and a writ of mandamus,” and particularly, to compel the court to proceed in an action of divorce wherein the court has made an order dismissing the action.

It would appear that the petitioner is not entitled to a writ of review, since she had a right of appeal. The petition shows that she did give notice of appeal, but that through some mistake or inadvertence she failed to perfect that appeal within the time allowed by law. I fail to discover anything in the cases cited in petitioner’s memorandum of authorities, sufficient to sustain Mr. Clark’s claim that in such cases as this a writ of review will be granted after the right of appeal has been thus lost. The decisions are definitely to the effect that in any case where the law gives the right of appeal from the order sought to be reviewed, a writ of review will not issue. The case of Golden Gate Tile Co. v. Superior Court, 159 Cal. 474 [ 114 Pac. 978 ], which seems to be the leading authority relied upon by petitioner, was a case originating in a justice’s court, wherein, of course, there was no right of appeal from the judgment rendered by the superior court dismissing the appeal…