The writ of review should have been directed to the Municipal Court of Appeals, and not to the Judge thereof. (Fraser v. Freelon, Judge etc. , 53 Cal. 644.) And the Clerk should have made the return to the writ and not the Judge. ( C. C. P., § 1070.)
This matter was heard and determined by the Superior Court upon motion to set aside the writ " upon the grounds that it was improperly issued, and for want of prosecution," and the writ was dismissed upon those grounds. The record shows no error in this dismissal and none will be presumed; in fact, no appeal is taken from that part of the order setting aside the writ--only from the affirmation of the judgment, and the dismissal being unobjectionable, it was the duty of the Court to affirm the judgment. ( C. C. P., § 1075.)
OPINION The Court:
The Court below made an order granting a motion to dismiss the writ of review, and affirming a judgment of the Municipal Court of Appeals. The allegations in the petition, and the relief demanded, are pointed to said Thomas W. Freelon, Judge of the Municipal Court of Appeals of the City and County of San Francisco; the writ of review was directed to said Thomas W. Freelon, as such Judge, and the return was made by him.
According to Section 1070, Code Civil Procedure, the writ should have been directed to the Court instead of the Judge, and the return should have been made by the Clerk. The proceeding contemplated by the Code is a proceeding against the tribunal instead of the Judge.
The motion to dismiss was made on the grounds that the writ was improperly issued, and for want of prosecution. The order granting the motion does not state the grounds on which it was granted; therefore we presume it was on both grounds stated in the motion.
Where a motion is granted dismissing a proceeding of this kind, on the grounds that the writ was improperly issued and for want of prosecution, the merits of the case (further than may necessarily result from granting the motion) are not for adjudication. Therefore, so much of the order as affirmed the judgment of the Municipal Court of Appeals was made without authority of law, and was error. The cause is remanded with instructions to strike out of the order the objectionable clause, and in all other respects the order is affirmed.