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District Court of Appeal, Second District, Division 1, California.


Civ. 13032.

Decided: June 13, 1941

Irving M. Smith, City Atty., of Long Beach, for petitioners. J. H. O'Connor, Co. Counsel, W. B. McKesson, Deputy Co. Counsel, and George H. Emerson, all of Los Angeles, for respondent.

This matter comes before this court on a petition for certiorari in which we are asked to review the jurisdiction of the superior court on contempt proceedings. The petitioners do not question the jurisdiction of said court to issue the injunction in the original action, and no appeal was taken from the order and judgment in that action. In other words, it is now attempted to have this court determine the guilt or innocence of the defendants in the original action of a charge made against them that they were guilty of contempt of court for violating the order in said action, of which charge they were found guilty after a hearing in re contempt.

Although there seems to be some confusion in the different decisions in California as to just exactly what can be determined by this court in passing upon a petition for a writ of certiorari, we hold, where the jurisdiction of the court is not attacked and where an appeal from the original order has not been taken, and such order has become final, that the orders in re contempt under attack herein cannot be reviewed in this type of proceeding. Whitley v. Superior Court, 18 Cal.2d 75, 113 P.2d 449; Hume v. Superior Court, 17 Cal.2d 506, 110 P.2d 669.

As was stated by this court in Monterey Club v. Superior Court, 44 Cal.App.2d 351, 112 P.2d 321, 324: “It should be noted that, while writs of mandate are governed by the provisions of section 1086 of the Code of Civil Procedure, and must issue, as therein provided, in all cases where there is not a plain, speedy and adequate remedy, in the ordinary course of law, and writs of prohibition are governed by the provisions of section 1103 of that code and, as there provided, may issue in like situations, the issuance of writs of certiorari is governed by the provisions of section 1068, which specifically authorizes such writs to be issued only in cases where there is no appeal. It may thus be seen that the specific conditions for the issuance of a writ of review differ from those provided for writs of mandate and prohibition; and authority for the issuance of the latter writs is not generally applicable to the issuance of the former.”

It appearing herein that an appeal could have been taken from the order granting the injunction, the writ heretofore issued must be discharged.

It is so ordered.


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