In Re Horowitz , 33 Cal. 2d 534 ( 1949 )

CARTER, J.

I concur in the conclusions' reached in the majority opinion and generally in the reasons stated therein for such conclusions, but I do not desire to be understood as giving approval to the rules announced in the majority opinions of this court in People v. Slobodion, 30 Cal.2d 362 [181 P.2d 868] and Estate of Hanley, 23 Cal. 2d 120 [142 P.2d 423], as I do not consider the rules announced in these opinions to be good law and I am hopeful that the time will come when the majority of this court will so declare.

EDMONDS, J.

The order dismissing the appeal from the order denying Horowitz relief by way of a writ of error coram nobis necessarily is based upon the conclusion recently stated by a majority of the court that such an application “must be regarded as part of the proceedings in the criminal case ...” (In re Paiva, 31 Cal.2d 503, 510 [190 P.2d 604].) This was a startling and wholly illogical departure from the rule long followed in California and expressly recognized by Mr. Justice Schauer in the same opinion: “That the writ, or the proceeding for it, has been traditionally regarded as civil cannot be disputed.” Yet, notwithstanding the traditional classification of the remedy, it was decided that “an order made in a proceeding in the nature of a writ coram nobis is an order in the original case. . . ” although none of the cases cited immediately following such characterization of it so hold. On the contrary, in previous consideration of the remedy of coram nobis, it was said: ‘This is a distinct proceeding and has no connection with any ruling made by the court during trial or any order since made by the court. . . . The record in this ease . . . was not vulnerable to the collateral attack made upon it. ’ ’ (People v. Superior Court, 4 Cal.2d 136, 151 [47 P.2d 724].)

For the reasons, which I stated more fully in the Paiva case (31 Cal.2d at p. 511), in my opinion the notice given by Horowitz of an appeal from the order denying relief to him was timely filed and the record should be reviewed upon the merits. As to the issues presented in the habeas corpus proceeding and the motion in connection therewith, I concur in the judgment.