Severns Drilling Co. v. Superior Court , 16 Cal. App. 2d 435 ( 1936 )

CRAIL, P. J., Dissenting.

I am against the issuance of any new order. This case is not before us on appeal. It came to us as an original proceeding. We issued our alternative writ of prohibition to show cause why an order of the trial court should not be annulled, and stayed the execution of the trial court’s order until the hearing. At the hearing we discovered that the alternative writ should never have been issued, and we not only denied a peremptory writ but we quashed and discharged the alternative writ (Severns Drilling Co., Ltd., v. Superior Court, 15 Cal. App. (2d) 281 [59 Pac. (2d) 593]), thus undoing what we had done and leaving the situation as if we had never touched it. The order of cancellation and discharge was self-executing. No remittitur was necessary and none was expected. The trial court was the party defendant. It appeared before us, fully represented by counsel, in an original proceeding which was not pending in the trial court. As it was not pending there, no remittitur was necessary to be sent there.

It was for these reasons no doubt that our Supreme Court on June 22, 1936, at which time a petition for hearing in that court was filed, issued its order of supersedeas. Such order was necessary to preserve the status quo while the Supreme Court reviewed the matter.

From the above considerations it is apparent that our so-called stay of a remittitur would be an idle act; that if a stay of the trial court’s order is issued it should be by the Supreme Court, which was the last court to review the matter, making first an order of supersedeas and later denying the petition for hearing in the Supreme Court and ordering a discharge of its writ of supersedeas; or better, the stay, if any, should be issued by the trial court, which at this time is under no restraint from higher courts, or by the Supreme Court of the United States.

Furthermore, if the petition for a stay of remittitur is to be taken seriously, then we must not overlook the fact that respondent has filed an answer to the petition in which it has alleged facts setting up the defense of bad faith on the part of petitioner and that the petition is for delay only. The issuing of a stay order is discretionary with this court, and the respondent is entitled to a trial on the issues of fact which are raised in the answer before the order may fairly be issued.

Finally, if an order of stay is made it should extend only for thirty days, a sufficient time for the Supreme Court of the United States to issue an order of stay on its part, and not the order which is being made by the majority of this court.