I dissent.
The majority opinion takes a constricted view of the sole question involved and bases its conclusion upon a ground not urged by either side of the litigation. Both sides concede that the basic question raised was whether or not the Municipal Court of the City and County of San Francisco had jurisdiction to issue a writ of execution on an abstract of judgment, and the judgment-roll supporting it, coming from another jurisdiction. The writ of review issued by the superior court to the Municipal Court of the City and County of San Francisco expressly reaches the proceeding had in the Municipal Court of the City and County of San Francisco resulting in the issuance and levy of an execution on this judgment. The majority opinion bases its conclusion upon the assumed fact that the Municipal Court of the City and County of San Francisco issued the execution in question without an order of the court itself. Respondent does not claim that an order of court was necessary or was absent. Coming from another jurisdiction, the execution could have been properly issued only upon an order of the court and it must be presumed that such an order was made. Moreover, this question is set at rest by the fact that the municipal court did ratify the action of the clerk by making its order refusing to recall and quash the said execution. The case of Adams v. Bell, ante, p. 503 [27 P.2d 757], cited in the opinion, is itself authority for the necessity of such an order. The issuance and levy of the execution thus became the result of a judicial proceeding.
The question of the jurisdiction of the Municipal Court of San Francisco to issue this execution is therefore fairly presented and if jurisdiction be wanting, the proceeding may be reviewed oncertiorari. (Buell v. Buell, 92 Cal. 393 [28 P. 443].) Taking said narrow view of the legal question presented is calculated to provoke additional criticism of our courts. The holding in Santini v. Justice's *Page 742 Court, 218 Cal. 671 [24 P.2d 761], that the issuance of an execution on one of the court's own judgments by the clerk thereof, was a ministerial act, does not apply in the situation here presented. The judgment here is from a foreign jurisdiction and could not lawfully be set up in another court only by a proper order of said court. Besides, in certain instances an order of court is required for the issuance of an execution upon the court's own judgments. (See sec. 685, Code Civ. Proc.;Creditors' Adjustment Co. v. Newman, 185 Cal. 509 [197 P. 334].) The authorities cited in the main opinion to the effect that certiorari is not the proper remedy when an aggrieved party has a remedy by appeal, are likewise not applicable to the situation here presented. Neither is the case of Wells Fargo Co. v. Anthony, 35 Cal. 696, in anywise helpful to the solution of the problem here confronting us. If the municipal court was wanting in jurisdiction, it is a proper use of the writ of certiorari to have this fact declared. Property has been seized under this execution and the action of this court in basing its conclusion upon the ground stated will sanction what may be the illegal seizure and sale of property.
I think that the question of jurisdiction should be fairly met and decided.
Rehearing denied.
Preston, J., dissented.