Kelsey v. Superior Court

In response to an alternative writ of prohibition issued by this court in the -above-entitled matter, requiring respondent to show cause why it should not be prohibited from proceeding further in a certain action wherein the city of San Diego is plaintiff and Van R. Kelsey and James Byers, as sheriff of San Diego County, are defendants, an answer to said writ, consisting of a certified copy of the entire record, has been filed in this court. , '

It appears from the petition upon which the writ was granted that on the twenty-sixth day of July, 1918, petitioner

That on September 18, 1918, plaintiff in said action recovered a judgment against the defendant therein in the sum of $11,336.12, which was duly docketed on September 19, 1918, and thereafter, to wit, on January 4, 1919, a writ of execution was duly issued thereon, commanding Byers, as sheriff of San Diego County, to make the sums due on the judgment of petitioner out of the property of said Kennedy situated within San Diego County, which execution was placed in the hands of the sheriff, with instructions to levy upon and sell the personal property, tools, machinery, and equipment owned by said Kennedy and located at said Lower Otay Dam in San Diego County, in pursuance of which writ and instructions so given, Byers, as sheriff, levied upon the property and advertised it for sale on January 17, 1919.

That on the day specified in said notice petitioner and Byers, as sheriff, appeared in response thereto and demurred to said complaint for injunction and filed objections to the issuance thereof, based upon affidavits, all of which were duly served upon the attorney for the plaintiff in said action; whereupon said superior court of San Diego County (as shown by the answer to the petition) vacated said restraining order and ordered the same discharged.

That immediately thereafter, on the same date and upon the same complaint, without amendment thereto or affidavits filed, plaintiff in said action procured to be issued out of said court another restraining order against petitioner and Byers, restraining the sheriff from selling the property bf Kennedy under and pursuant to the writ of execution so issued, and requiring petitioner and sheriff to show cause on February 3d, before the Honorable C. N. Andrews, judge presiding in Department Four of said court, why an injunction should not be granted restraining the sale of said property under said execution, and meanwhile restraining said sale. That after obtaining said last mentioned order, to wit, on January 31, 1919, the plaintiff in said action wherein petitioner and the sheriff were made defendants, filed an amendment to its complaint and duly served the same, but at no time did the plaintiff therein, through its attorneys, file or serve upon petitioner or said sheriff, or upon either or any of their attorneys, any points or authorities, as required by section 527 of the Code of Civil Procedure.

That on February 1, 1919, petitioner and said sheriff filed and served their affidavits in response to said order to show cause on February 3, 1919, and notified the attorney for said

That, notwithstanding the levy of said writ of attachment and the placing of said writ of execution in the hands of the sheriff, he has permitted and is permitting the city of San Diego, through a keeper by him placed in charge thereof, to use said property of Kennedy’s so attached and levied upon, continuously, as a result of which it is being worn out and depreciated in value, which wear and tear and depreciation will continue so long as said city is permitted to use the same.

That on February 10th, the day to which said hearing was continued, petitioner and the sheriff appeared in court and objected to the court taking any proceedings in said matter other than to declare and adjudge that said restraining order dated January 28th was ineffectual, and that said order to show cause had by lapse of time become inoperative, which objections were overruled and the further hearing of the

[1] Plaintiff insists, first, that the complaint filed by the city fails to state facts entitling plaintiff to' any injunctive relief. This for the reason that at the time when the levy under the writ of attachment was made Kennedy owned and was in possession of the property, and the city, though asserting a lien upon the property by virtue of a clause in a contract existing between it and Kennedy, had in fact no lien thereon or claim thereto, recognizable in law. Assuming this contention to be well founded, and also that petitioner has just cause for grievance due to the action of the sheriff in what upon this record appears to be a plain violation of his official duty in permitting the property to be used by the city, the effect of which, owing to such use and resulting deterioration, must necessarily greatly depreciate the value thereof, nevertheless upon such facts it cannot be said respondent, if it erroneously issued the restraining order and temporary injunction, acted in excess of its jurisdiction. It is a court of general jurisdiction having power to entertain the class of proceedings in question. It had before it the parties to the action. The subject matter of the litigation, which the court was called upon to determine, was plaintiff’s right to the relief prayed for upon the facts stated in the complaint. ‘‘Whether the particular facts on which the court proceeds in that regard are or are not sufficient to justify its exercise of jurisdiction is a question of law the solution of which, either way, cannot impair the court’s right to apply its judicial power in the premises, according to its view of the law, and of the facts before it.” (State ex rel. Union Depot R. Co. v. Valliant, 100 Mo. 59 , [ 13 S. W. 398 ].) Hence, conceding a total absence of facts alleged in the complaint to war

[2] Petitioner, conceding the restraining order to have been properly made, next insists that the court upon the proceedings shown to have been taken had no power to make any order other than to dissolve the restraining order. This contention is based upon the provisions of section 527 of the Code of Civil Procedure, which, among other things, provides that “in case a temporary restraining' order shall be granted without notice, . . . the matter shall be made returnable on an order requiring cause to be shown why the injunction should not be granted, on the earliest day that the business of the court will admit of, but not later than ten days from the date of such order. When the matter first comes up for hearing the party who obtained the temporary restraining order must be ready to proceed and must have served upon the opposite party at least two days prior to such hearing, a copy of the complaint and of all affidavits to be used in such application and a copy of his points and authorities in support of such application; if he be not ready, or if he shall fail to serve a copy of his complaint, affidavits and points and authorities, as herein required, the court shall dissolve the temporary restraining order.” While points and authorities were served upon defendant in the action brought by the city, prior to the time fixed for the hearing of the restraining order first granted and thereafter vacated, no points and authorities were so served in support of the application made and set for hearing on February 3d. Upon the vacation of the restraining order first granted, the proceeding for temporary injunction terminated. The service of such points and authorities for use at the hearing thereof cannot, as to the order here involved, be deemed a compliance with the provisions of the statute, which in absolute terms requires the applicant for an injunction to serve upon the opposite party, at least two days prior to such hearing, a copy of his points and authorities. [3] Not only was there a failure of the plaintiff in said action to comply with this provision, but it appears from the application made for a continuance that there was an absence of compliance with

[4] By its action in continuing the hearing the court was, in our opinion, divested of jurisdiction to take any action on February 10th other than to dissolve the restraining order so issued. It follows from what has been said that the peremptory writ of prohibition should be granted. It is, therefore, ordered that the respondent refrain and-desist from any action or proceeding based upon the restraining order made on February 3, 1919, or the order made on February 11, 1919, granting a temporary writ of injunction, or the enforcement thereof, in that certain cause wherein the city of San Diego is plaintiff and Van R. Kelsey and James C. Byers are defendants, now pending in the superior court of San Diego

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