Long v. Superior Court — 127 Cal. 686

Majority

p. 686

[S. F. No. 2094.

In Bank.

March 2, 1900.]

E. B. LONG et al., Petitioners, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.

Headnote

Interpleader—Dismissal as to Plaintiff—Reversal of Judgment between Litigants—Costs upon Appeal—Order Restraining Execution—Certiorari—Mandamus.—Where an action of interpleader involving a disputed right to a fund which the plaintiff deposited in court was dismissed as to him, and the defendants litigated their respective claims to the fund, and, upon appeal from the final judgment, the interpleader was approved, and the judgment reversed as between the litigants, execution for the costs of appeal cannot issue against the plaintiff. An order restraining such execution cannot be annulled upon certiorari; nor will mandamus lie to compel the clerk to issue it.

PETITION to the Supreme Court for a writ of review to annul an order of the Superior Court restraining an execution for costs upon appeal and to compel the clerk to issue such execution. John Hunt, Judge.

p. 687

The facts are stated in the opinion of the court.

T. C. Spelling, and George D. Collins, for Petitioners.

Charles 27. Pox, for Respondents.

This is a petition in this court for a writ of certiorari to review a certain orffer made by the respondent, the superior court, and also for a writ of mandate to compel the issuance of an execution for costs. An alternative writ of mandate was issued.

The matters here involved grow out of a certain action entitled San Francisco Savings Union v. E. B. Long and others, in which a certain judgment was entered in the superior court which, upon appeal, was reversed by this court. (See San Francisco Sav. Union v. Long, 123 Cal. 107 .) That was an action of interpleader brought by the plaintiff therein to have sundry claimants to a deposit in the bank of plaintiff litigate among themselves, and have determined to whom the money should be paid. In the trial court in that action the defendants therein made no objection to the right of plaintiff to commence the action, but appeared and set out their respective rights as against each other, “and upon this state of facts the interlocutory decree was entered, and the plaintiff, having deposited the money in court, was dismissed from the case.” (San Francisco Sav. Union v. Long, supra.) Thereupon the defendants in that action litigated their respective rights to the money, and a judgment having been entered in favor of some of them and against others, those who were defeated appealed to this court. The order of this court was: “The judgment is reversed and the cause remanded for a new trial in accordance with this opinion.” The clerk of this court entered judgment in accordance with the direction of this court and inserted in the judgment, “Appellants to recover costs of appeal herein.” When the remittitur went down the petitioners herein, who were the appellants in said action, sought to have an execution for costs issued against the San Francisco Savings Union, which was the interpleader in said action. The superior court made an order restraining the issuance of such an execution, and the clerk of said court refused to issue such an execution. The purpose of this present

p. 688

proceeding is to review and annul the order of the superior court restraining execution, and to compel the clerk by mandate to issue an execution. It is quite apparent that the Savings Union having been dismissed from the case in the court below, and that action having been approved here, the judgment for costs does not run against said San Francisco Savings Union, and the petitioners here, as the appellants in said case, have no right to an execution against said Savings Union.

The alternative writ of mandate is discharged, and the petition for certiorari is denied.

Cases cited

San Francisco Savings Union v. Long 123 Cal. 107 Cal. 1898-12-20 p. 687