Preston v. Superior Court of Los Angeles , 184 Cal. 658 ( 1921 )

[2] In view of certain claims earnestly pressed in the petition for rehearing filed herein, we deem it proper to state that our order submitting the matter for decision in this court upon the briefs on file, and without affording further opportunity for argument by the parties, was in accord with the provisions of subdivision 5 of rule XXX of this court [183 Pac. viii] (in effect September 15, 1919), which is as follows: "When a cause is transferred for determination to the supreme court after decision by a district court of appeal, the supreme court, if it deems such course proper in the particular cause, may order the same forthwith submitted for decision upon the briefs on file, without entertaining further argument, oral or otherwise."

Upon the record before us we deemed this to be the proper course in this proceeding. If in any matter in which this practice has been adopted it is made to appear on application for a rehearing that the doing of substantial justice demands that a further hearing should have been afforded, we would unhesitatingly grant such a rehearing. The rule appeared to us and still appears to be peculiarly applicable in this proceeding wherein it was sought to prohibit a superior court from proceeding with the trial of a cause pending therein, in which it was obvious that the court had jurisdiction both of the subject matter and of the parties, and that the matter complained of as constituting an excess of jurisdiction on the part of the court was simply one of the issues in said cause to be determined therein. The rule is in the interest of a more speedy disposition of litigation and will be followed in such cases as appear to warrant its application.

On the merits, petitioner's whole grievance lies in the fact that an action has been instituted and is pending against him for the recovery of money alleged to be due from him to a corporation, by one who alleges himself to be the lawfully appointed receiver for such corporation. His claim here is that such plaintiff is not the lawfully appointed receiver of such corporation, and on that claim he seeks to prohibit the superior court from entertaining and determining the pending action wherein it has full jurisdiction of both subject matter and person, and the consequent right to determine, subject to review on appeal, the issue as to the validity of the plaintiff's appointment as receiver. That he cannot do this seemed too clear to us to admit of question. It may be that any different view on the part of learned counsel for petitioner is due to the fact that the action in which the appointment of a receiver was made is one also pending in the superior court of Los Angeles County. If the action sought to be restrained had been commenced and was pending in another county, as might lawfully have been the situation if the defendant, who is petitioner here, had been a resident of such other county, the correctness of our view would probably be more clearly apparent. [3] We are satisfied that it must be apparent on reflection that it is altogether immaterial in this connection whether the action instituted by the alleged receiver is in the superior court of the county wherein he claims to have been appointed, or in the superior court of some other county. In either case, the court in which it is pending has full and complete jurisdiction of the action.

It is suggested that the statement in the opinion that "in so far as the writ is sought against the alleged receiver it will not lie, as he is not exercising judicial functions," is at variance with the views enunciated in Havemeyer v. SuperiorCourt, 84 Cal. 389, [18 Am. St. Rep. 192, 10 L.R.A. 627, 24 P. 121]. We did not mean to intimate that the receiver may not be properly joined with the superior court under whose appointment he is acting as a respondent, and that where excess of jurisdiction on the part of the respondent superior court for which he is acting is shown, the writ may not run against him to effectuate the complete relief against judicial action to which a party is entitled. As said in the Havemeyer case, "the writ runs to the court, and operates directly upon the court, but indirectly upon the receiver." But if the court is not, in the respect in which it is assailed (in this matter, in entertaining and determining the pending action), acting in excess of its jurisdiction, there is no foundation for prohibition against the receiver alone, and the proceeding must also fail as to him. The statement referred to, contained in the opinion, is susceptible of misconstruction, and is not at all necessary to the decision in view of what we have here said.

It is ordered that the statement referred to be and the same is stricken from the opinion, and that the petition for rehearing be and the same is denied.

Angellotti, C. J., Shaw, J., Olney, J., Wilbur, J., Lawlor, J., Lennon, J., and. Sloane, J., concurred.