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Eden Memorial Park Ass'n v. Department of Public Works

207 Cal. App. 2d 766 Court Second Dist., Div. Two. Decision date 1962-09-21 Docket Civ. No. 26719 English

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p. 766
[Civ. No. 26719.
Second Dist., Div. Two.
Sept. 21, 1962.]
EDEN MEMORIAL PARK ASSOCIATION et al., Plaintiffs and Appellants, v. DEPARTMENT OF PUBLIC WORKS et al., Defendants and Respondents.
Sandler & Rosen, Nelson Rosen and Thorpe, Sullivan, Clinnin & Workman for Plaintiffs and Appellants.
Stanley Mosk, Attorney General, N. B. Peek and Don G. Kircher, Deputy Attorneys General, George C. Hadley, George W. Miley, Charles E. Spencer, Jr., and Robert E. Reed for Defendants and Respondents.

Petition for writ of supersedeas. Recently we had before us a petition for mandate (2d Civil No. 26613) to direct the superior court to set aside a judgment which dissolved a preliminary injunction and dismissed petitioners’ complaint for declaratory relief. We denied that petition and appellants filed a petition for hearing in the Supreme Court, praying inter alia that, their petition “be deemed, in the alternative, one for a writ of supersedeas or an order equivalent thereto. ’ ’ The petition was denied on August 29,1962, without opinion. Later the appeal from the judgment was transferred to this court and the instant petition for supersedeas filed herein.

We construe the said ruling made by the Supreme Court on August 29 to be in substance a denial of supersedeas herein. Accordingly we deem it improper for us to grant the writ.

Moreover, it seems that we do not have the power to restore during the pendency of the appeal the injunction which the lower court dissolved and refused to continue in effect during the appeal. (Wollenshlager v. Biegel, 186 Cal. 622 [ 200 P. 726 ]; Signal Oil etc. Co. v. Ashland Oil etc. Co., 49 Cal.2d 764 , 774 [ 322 P.2d 1 ], footnote 4.)

Petition for supersedeas denied.

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