Loftis v. Superior Court — 205 Cal. App. 148

Majority

p. 148

[Civ. No. 6941.

Fourth Dist.

June 26, 1962.]

NATHAN JERREL LOFTIS, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; NETA JANE LOFTIS, Real Party in Interest.

Sander L. Johnson and Lloyd S. Wolf for Petitioner.

No appearance for Respondent.

Stephen C. Johnson for Real Party in Interest.

This is an application for a writ of prohibition to restrain further proceedings in a divorce action now pending before the respondent superior court, upon the ground that it has no jurisdiction to proceed therein because of a prior pending action between the same parties, involving the same cause, before the Superior Court of Los Angeles County.

Two actions for divorce are pending between the petitioner and his wife; both were instituted by the latter; both involve the same cause; the first thereof was commenced in Los Angeles County by the filing of a complaint on June 12, 1961, and, after issue joined, was set for trial; thereafter the second thereof was commenced by the filing of a complaint in San Diego County on December 8,1961; at this time the first action still was pending; petitioner demurred to this complaint upon the ground that the previously instituted Los Angeles action was pending; the respondent court overruled this demurrer

p. 149

and thereupon, over objection by petitioner that it had no jurisdiction in the premises, made an order respecting child custody, support, attorney’s fees, and court costs; petitioner then obtained an alternative writ of prohibition from this court restraining further proceedings in the San Diego action; subsequently, i.e., on April 26, 1962, the Los Angeles case went to trial; both parties appeared at the hearing; and the court entered an interlocutory judgment of divorce therein, including orders respecting child custody, support, and attorney’s fees, and also an adjudication respecting property rights.

It is well established “that when two or more courts in this state have concurrent jurisdiction, the court first assuming jurisdiction retains it to the exclusion of all other courts in which the action might have been initiated.” (Greene v. Superior Court, 37 Cal.2d 307 , 310 [ 231 P.2d 821 ]; In accord : Scott v. Industrial Acc. Com., 46 Cal.2d 76 , 81 [ 293 P.2d 18 ]; Marshall v. Superior Court, 168 Cal.App.2d 71 , 72 [ 335 P.2d 122 ]; Guardianship of Vierra, 115 Cal.App.2d 869 , 872 [ 253 P.2d 55 ]; In re Kosh, 105 Cal.App.2d 418 , 424 [ 233 P.2d 598 ]; Simmons v. Superior Court, 96 Cal.App.2d 119 , 122 [ 214 P.2d 844 , 19 A.L.R.2d 288 ].) Under the circumstances heretofore related, a writ of prohibition will issue to restrain further proceedings in the San Diego action. (Taylor v. Superior Court, 47 Cal.2d 148 [ 301 P.2d 866 ] ; Scott v. Industrial Acc. Com., supra, 46 Cal.2d 76 , 81; Caputo v. Municipal Court, 184 Cal.App.2d 412 , 420 [ 7 Cal.Rptr. 435 ]; Simmons v. Superior Court, supra, 96 Cal.App.2d 119 , 123; Rilcoff v. Superior Court, 50 Cal.App.2d 503 , 506-507 [ 123 P.2d 540 ].)

Let a peremptory writ of prohibition issue accordingly.

Shepard, Acting P. J., concurred.

Cases cited

Greene v. Superior Court 37 Cal.2d 307 Cal. 1951-05-25 at 310 p. 149
Scott v. Industrial Accident Commission 46 Cal.2d 76 Cal. 1956-02-03 at 81 p. 149
Marshall v. Superior Court 168 Cal.App.2d 71 Cal. Dist. Ct. App. 1959-02-17 at 72 p. 149
Vierra v. Murphy 115 Cal.App.2d 869 Cal. Dist. Ct. App. 1953-02-10 at 872 p. 149
In re Kosh 105 Cal.App.2d 418 Cal. Dist. Ct. App. 1951-07-13 at 424 p. 149
Simmons v. Superior Court 96 Cal.App.2d 119 Cal. Dist. Ct. App. 1950-02-17 at 122, at 123 p. 149
Taylor v. Superior Court 47 Cal.2d 148 Cal. 1956-10-11 p. 149
Caputo v. Municipal Court 184 Cal.App.2d 412 Cal. Dist. Ct. App. 1960-09-06 at 420 p. 149
Rilcoff v. Superior Court 50 Cal.App.2d 503 Cal. Dist. Ct. App. 1942-03-17 at 506-507 p. 149