I concur in the judgment, but cannot assent to all that is said in the foregoing opinion by Mr. Justice Taggart.
Under the provisions of section 1171 of the Penal Code, the defendant should have presented the draft of his bill of exceptions to the judge for settlement within ten days after judgment, or within such extension of time ordered by the trial judge in accordance with the provisions of section 1174 of the Penal Code. The bill was not presented within the time specified in section 1171, supra, nor was any legal order made prior to the expiration of the ten days extending defendant's time for presentation of his bill. The order made on February 7, 1908, but not entered until March 16th following, was a nullity, for the reason that no affidavit showing the necessity for such extension of time was made or filed. (People v. Blis,3 Cal.App. 162, [84 P. 676]; People v. Simmons, 7 Cal.App. 559, [95 P. 48].) The time having expired, the court was without authority to make the order of date February 25, 1908, extending defendant's time to February 29, 1908, within which to prepare and present his bill *Page 328 of exceptions, unless the court had first made an order relieving defendant from his default. Admitting that the affidavit filed on February 17th constituted an application for relief, and performed the dual function of showing the necessity for the extension of time, and also constituted a sufficient showing under section 473 of the Code of Civil Procedure, in support of the application for relief, still, so far as the record shows, the court never at any time made an order relieving defendant from default. The minute entry of February 25th does not purport to be other than an order extending the time. It cannot, in my judgment, be construed as an order relieving defendant from default. Where the court is without jurisdiction to make an order, except by virtue of some intervening action or order, the record must, in order to justify the exercise of jurisdiction, show that such intervening action or order upon which jurisdiction depends was had or made. (Cameron v. Arcata etc. R. R. Co., 129 Cal. 279, [61 P. 955].)
The expression of opinion by the trial judge wherein he gives his reasons for making the order, as shown by the return, is no part of the record, and cannot be regarded of any weight in support of this application. (Higgins v. LosAngeles Ry. Co., 5 Cal.App. 748, [91 P. 344]; Schwerdtle v.Placer Co., 108 Cal. 589, [41 P. 448].)
Want of jurisdiction, however, does not of itself warrant the issuance of the writ of prohibition. Petitioner can suffer no injury for the reason that he has an adequate remedy upon the hearing of the appeal, by interposing objections to the consideration of the bill of exceptions, upon the ground that the bill itself discloses that it was settled after the expiration of the statutory time, and in the absence of an order granting relief, without which there could be no authority for making the order dated February 25th extending the time. (Lindley v. Superior Court, 141 Cal. 220, [74 P. 765].) "The writ of prohibition should not ordinarily issue where certiorari will lie, unless it appears that the applicant for the writ will necessarily be injured if the tribunal sought to be prohibited is permitted to proceed." (Santa Monica v. Eckert et al. (Cal.), 33 P. 880; Hayes v.Board of Trustees etc., 6 Cal.App. 520, [92 P. 492].) *Page 329
It is not improper to suggest that ample time remains for defendant, if so advised, to make an application supported by a showing of facts which may warrant the trial judge in making an order relieving him from default, thus affording a record of the proceedings under the authority of which he would, in the first instance, be warranted in settling the bill.