Remington v. Superior Court — 69 Cal. 633

Majority

p. 633

[No. 11457.

Department One.

May 27, 1886.]

F. C. REMINGTON, Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.

Headnote

Divorce — Disposition of Property — Jurisdiction.—In an action of divorce, the court has no power to enjoin the disposition of property pending the controversy, unless there is some pleading by which an issue as to such property is tendered.

Application for writ of prohibition. The facts are stated in the opinion of the court.

Manuel Eyre, for Petitioner.

H. H. Lowenthal, for Respondents.

Prohibition. In an action for divorce the court made an order that the defendant show cause why he should not be restrained from seeking to collect

p. 634

the amount of a judgment, which he had recovered against a third party. The petition herein averred in effect that the issues in the divorce suit did not embrace the disposition of property. Such being the case, the demurrer to the petition is overruled.

The answer filed to the petition does not traverse the averment above noted; it states that the respondent, in making the order to show cause, did not profess that it would determine the title to the money due on the judgment, but simply enjoin the disposition thereof until the determination of the divorce suit.

We apprehend that in an action for divorce, if a disposition of property is sought, there should be some pleading (either by the original complaint or by supplemental pleading) by which an issue as to such property would be tendered. It appearing in this cause that no such issue was tendered, the court had no jurisdiction to make the restraining order.

Writ granted.