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District Court of Appeal, Third District, California.


Civ. 6607.

Decided: March 13, 1942

Alfred J. Hennessy, of San Francisco, for appellant. Joseph C. Tope, City Atty., and H. C. Stanley, Asst. City Atty., both of Stockton, for respondent.

This is an appeal from a judgment denying a petition for writ of mandate.

On June 20, 1935, a complaint was filed in the Police Court of the City of Stockton, charging petitioner with the crime of contributing to the delinquency of a minor. Thereafter, petitioner appeared in said court with counsel, and pled guilty to said charge. He now seeks, through mandamus, to compel said court “to strike from and expunge from the records of said Police Court, the said complaint and judgment and all records pertaining to said case,” upon the ground that said court had no jurisdiction over the offense.

Section 1085 of the Code of Civil Procedure, referring to mandamus, provides as follows: “It may be issued by any court, except a municipal, justice's or police court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.”

Assuming that the Police Court was without jurisdiction, we can find no statute which makes it the duty of a court to expunge such documents from its records. It is true that void judgments and orders may be vacated under certain circumstances, but “expunging” the actual documents from the record is quite another matter. The latter term means to destroy or obliterate. Webster's New International Dictionary, 2d Ed. It implies not a legal act, but a physical annihilation.

Appellant relies upon the following portion of Section 473 of the Code of Civil Procedure: “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

We can find no legal duty imposed upon the court by said section which makes it the clear duty of said court to expunge from its records a void judgment.

The judgment is affirmed.

TUTTLE, Justice.

THOMPSON, Acting P. J., and STEEL, Justice pro tem., concurred.

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