Hyperlawhypertext legal databasebeta Kelsey v. Byers 40 Cal. App. 228

← Cases

Kelsey v. Byers

40 Cal. App. 228 Court Second Appellate District, Division One. Decision date 1919-03-10 Docket Civ. No. 2953 English

Delivered by SHAW, J.

Contents

Majority

p. 228
[Civ. No. 2953.
Second Appellate District, Division One.
March 10, 1919.]
VAN R. KELSEY, Petitioner, v. JAMES C. BYERS, Sheriff of the County of San Diego, California, Respondent.

Headnote

[1] Writ op Mandate—Execution.—Where the sheriff’s return to an alternative writ of mandate requiring him to show cause why he should not execute a .writ of execution issued out of a superior court is based upon a restraining order issued out of a superior court enjoining him from so doing, and the appellate court, having jurisdiction, has already decided that the last-mentioned superior court had no jurisdiction to make any order in said matter other than one dissolving said restraining order, it follows that the peremptory writ of mandate must issue.
APPLICATION for a peremptory Writ of Mandate to be directed to the sheriff of San Diego County, commanding him to execute a writ of execution. Granted.
The facts are stated in the opinion of the court.
George H. Moore, Raymond D. Hoyt, Henning & McGee and W. H. Wylie for Petitioner.
Eugene Daney for Respondent.

This is an application for a peremptory writ of mandate to be directed to the respondent as sheriff of San

p. 229
Diego County, commanding him to execute a writ of execution issued out of the superior court of Los Angeles County in a certain action wherein Van R Kelsey was plaintiff and James Kennedy was defendant, and requiring him to immediately, in accordance with law, proceed to sell the personal property upon which said execution was levied. As shown by answer to the petition for the writ, his refusal to proceed • in enforcing the writ of execution is based upon a restraining order issued in the case of the City of San Diego v. Van B. Kelsey and James C. Byers, by the superior court of San Diego County enjoining him from so doing.

[1] In a proceeding numbered 2952, post, p. 229, [ 180 Pac. 662 ], wherein Van R. Kelsey is petitioner and the superior court of San Diego County is respondent, involving the validity of such restraining order and injunction, this court, for the reasons stated in an opinion this day filed, held that said superior court, by reason of continuing the hearing of the application made by the city of San Diego for a temporary injunction, had no jurisdiction to make any order in said matter other than one to dissolve the restraining order. It follows from what is said in the opinion so filed that the writ of mandate as prayed for should issue against said J ames C. Byers, as sheriff, and it is so ordered.

Conrey, P. J., and James, J., concurred.