Buckley

—A dissenting opinion in an ordinary case probably does more harm than good; it weakens the effect of the decision as a precedent, and tends to destroy the respect which we all hope to secure for our decisions at home and abroad. The decision in this case, however, is itself so destructive of precedents established by our predecessors in well-considered cases, I deem it my duty to spread upon the record the reasons for my dissent, and to show, if possible, that in matters of , jurisdiction the superior court is not clothed with that supreme and arbitrary power conceded to it by the decision herein.

Carlson v. Superior Court, 70 Cal. 628 , Levy v. Superior Court, 66 Cal. 292 , and other kindred cases, in my'opinion, were correctly decided, and should be adhered to. The decisions in those cases went upon the proposition that a court cannot divest itself of jurisdiction by arbitrarily saying it has no right to proceed, any more than it can invest itself with jurisdiction by arbitrarily saying it has a right to proceed. My brothers concede that if a court proceed in a case where the record shows it has no jurisdiction, its orders are void, but hold that in this case the court having…

— A motion was made in the superior court of Fresno County to dismiss the appeal then pending before that court in the case of Hulen v. Buckley, the ease having been originally tried in the justice’s court.

The motion was made upon the grounds that, — 1. The judgment appealed from was entered by default, and is not appealable; 2. That no motion was made in the lower court to set aside the default before the appeal •was taken; 3. That said appeal was taken upon questions of both law and fact. The court granted the motion, and we are now asked to review that action by a writ of review.

Section 1068 of the Code of Civil Procedure reads: “ A writ of review 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, *120 and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy.”

It will be noticed that the foundation of the writ is essentially and necessarily an excess of jurisdiction; for no act of tribunal, board, or officer exercising judicial functions, done or made within its jurisdiction,…