Green v. Superior Court

This is an application for a writ of prohibition to be directed to the superior court' in and for the county of Los Angeles and to Harry R. Archbald, as judge thereof, requiring the said respondents to desist from any action or proceeding based upon a temporary injunction following a restraining order issued out of said court under the order of the said judge.

The facts appear to be that Rosa Green had brought a suit in accounting against Max Green and had obtained from the court an order restraining the defendant from dealing generally with the subject matter of the action and directing defendant to show cause on the eighteenth day of October, 1923, why a temporary injunction pending the trial of the cause should not be issued to the same effect. In accordance with the said order, the defendant personally appeared—his attorney being excusably absent. Although the order to show cause did not appear on the court’s calendar, the matter was nevertheless called; and, according to the return, as appears by the affidavit of the judge filed herein, the defendant personally requested a continuance, to which request the attorneys representing plaintiff consented; and an order was thereupon made by the court continuing the hearing of said order to show cause until October 26, 1923. On said date defendant served on plaintiff and filed in the action a counter-affidavit setting up certain matters not relevant here, and plaintiff also filed therein two affidavits neither of which was in reply to anything contained in defendant’s counter-affidavit and which affidavits of plaintiff had been prepared preceding the date of service of defendant’s counter-affidavit, and preceding said date of hearing of the order to show cause. Over defendant’s objection, the court proceeded to hear the matter; received in evidence plaintiff’s said two affidavits and ordered a temporary injunction to issue.

In the case of Kelsey v. Superior Court, 40 Cal. App. 229 [ 180 Pac. 662 ], it was held that a failure by the plaintiff to serve on the defendant a copy of his points and authorities at least two days before the hearing was sufficient to divest the court of jurisdiction, excepting for the sole purpose of dissolving the restraining order theretofore issued; that consequently the order of temporary injunction issued by the court was a nullity; and that a writ of prohibition should issue as against further proceedings under such order. The language of the statute covering the situation here is plainly to the effect that, unless all affidavits to be used on the hearing be served upon the opposite party at least two days prior thereto, the court shall dissolve the restraining order. The facts of the instant case are that certain affidavits used by the plaintiff were not served on the defendant until the day of the hearing. The evident purpose of the statute is to prevent surprise—to the end that no unfair advantage may be taken of the defendant in the way of evidence which has not been anticipated. An examination of the record herein discloses that entirely new matter was injected into the ease by the allegations contained within the affidavits presented by the plaintiff on the day of the hearing, and it might well be that the defendant was entirely unprepared to meet such new issues. That fact, however,

It follows that the respondents should proceed no further in the premises other than to order the dissolution of the restraining order and the order of temporary injunction. It is so ordered.

Conrey, P. J., and Curtis, J., concurred.