Holt v. James — 10 Cal. App. 360

Majority

p. 360

[Civ. No. 684.

Second Appellate District.

—April 5, 1909.]

H. E. HOLT, Petitioner, v. W. P. JAMES and the SUPERIOR COURT IN AND FOR THE COUNTY OF LOS ANGELES, Respondents.

Headnote

Prohibition—Premature Order Requiring Justification of Sure- - ties on Stay Bond—Excess of Jurisdiction—-Appealable Order. When, after exceptions filed to the sufficiency of the sureties on a bond to stay execution pending an appeal taken, the court, on the same day, made an order requiring the sureties thereon to appear before it on the following day and justify, and ordered that if they failed to do so, execution should issue on the judgment, if it be conceded that such order so made before the expiration of twenty days from the filing of such exception was in excess of jurisdie- ■ tion, yet since the order is appealable, as having been made after final judgment, the writ of prohibition will not lie to restrain its enforcement.

Id.—Other Adequate Remedy.—Under the established rule, where other adequate remedy exists, the writ of prohibition cannot be invoked.

PETITION for writ of prohibition to restrain the enforcement of an order of the Superior Court of Los Angeles County. W. P. James, Judge.

The facts are stated in the opinion of the court.

V. T. Watkins, and Watkins & Blodget, for Petitioner.

John W. Kemp, and John S. Mitchell, for Respondents.

Application for writ of prohibition.

It is made to appear by the record filed herein that in a certain action pending in the superior court .of Los Angeles county, entitled R. L. Couts, plaintiff, v. H. R. Holt, defends ant, a writ of attachment had been duly issued and levied

p. 361

upon certain personal property; that said superior court duly made and entered its judgment in favor of plaintiff and against defendant for $631; that thereafter, within due time, an undertaking on appeal was filed, and an additional undertaking to stay execution; that thereafter, on the twenty-ninth day of March, 1909, the plaintiff in said action duly excepted to the sufficiency of the sureties on said last-named undertaking, and the court thereupon made its order directing said sureties to appear and justify on a day fixed by the court, to wit, on the thirtieth day of March, 1909, which date was before the expiration of twenty days from the day the exception was filed, and further made its order that, unless such sureties appeared and justified, execution should issue upon said judgment.

Petitioner asks this court to prohibit the superior court from making and executing its order requiring the sureties to justify before the expiration of twenty days from the date of the filing of the exception, and from directing the issuance of execution upon default of such justification. If it be conceded that such order was made without jurisdiction, and that justification cannot be compelled until twenty days after the filing of the exception to the sufficiency of the sureties, nevertheless this writ must be denied for the reason that any order made by the court in reference thereto would be an order after judgment, as contemplated by section 963, Code of Civil Procedure, and therefore appealable, and under the established rule, where other adequate remedy exists, the writ of prohibition cannot be invoked. (Southern Cal. Ry. Co. v. Superior Court, 127 Cal. 418 , [ 59 Pac, 789 ].),

Writ denied.