Opinion
Docket No. 1673.
January 28, 1937.
PROCEEDING in prohibition to restrain the Superior Court of San Bernardino County, and Benjamin F. Warmer, Judge thereof, from hearing or trying an appeal from a justice's court. Writ denied.
The facts are stated in the opinion of the court.
N.C. Peters for Petitioner.
James S. Jarrott and William Ray Schirmer for Respondents.
This is an application for a writ of prohibition commanding the respondent court and judge to refrain from hearing or trying a certain appeal from a justice's court on the ground that no notice of appeal was filed within the time allowed by law.
[1] The respondents filed an "answer to the alternative writ of prohibition" alleging that proper steps had not been taken in connection with two motions filed by petitioner in the respondent court, that no copy of the petition upon which the alternative writ was issued had been served upon any of the respondents, and praying that the alternative writ be discharged. Briefs were filed by both parties, the petitioner conceding that no copy of the petition had been served, and the matter was thus submitted.
Service of a copy of the petition is required by sections 1088 and 1105 of the Code of Civil Procedure. While the allegations of the petition are not denied we cannot assume that they are correct, in the absence of service on the other parties and of any opportunity to admit or deny the same. As the matter is presented a peremptory writ cannot be granted.
The petition is denied and the alternative writ is discharged without prejudice to the filing of a new application.
Marks, J., and Jennings, J., concurred.