Rosicrucian Fellowship v. Superior Court — 73 Cal. App. 2d 824

Majority

p. 824

[Civ. No. 3615.

Fourth Dist.

Apr. 2, 1946.]

THE ROSICRUCIAN FELLOWSHIP (a Corporation), Petitioner, v. SUPERIOR COURT OF SAN DIEGO COUNTY et al., Respondents.

Elmer J. Walther for Petitioner.

Thomas Whelan, District Attorney, and Stewart, Shaw & Murphy for Respondent.

Petitioner is here asking for a writ of mandate directed to the respondent court to command it to take a certain action in a case in which an injunction was issued. It is an equitable action in which original appellate jurisdiction is in the Supreme Court. Petitioner states in its petition that the appeal from the judgment is now pending in that court.

The rule generally followed in this state is that where a writ is sought in a ease pending, on appeal the petition

p. 825

should be filed in the court in which the appeal is pending. (See, Collins v. Superior Court, 147 Cal. 264 [ 81 P. 509 ] ; Estate of Turner, 39 Cal.App. 56 [ 177 P. 854 ] ; Gunder v. Superior Court, 100 Cal.App. 334 [ 279 P. 822 ] ; Foster v. Superior Court, 4 Cal.App.2d 466 [ 41 P.2d 187 ] ; Waidley v. Superior Court, 51 Cal.App.2d 690 [ 125 P.2d 507 ].) It follows that the application for the writ should have been made to the Supreme Court.

The petition is denied without prejudice to applying for the writ in the proper court.

Cases cited

Collins v. Superior Court 147 Cal. 264 Cal. 1905-06-27 p. 825
In re Estate of Turner 39 Cal.App. 56 Cal. Dist. Ct. App. 1918-12-04 p. 825
Gunder v. Superior Court 100 Cal.App. 334 Cal. Dist. Ct. App. 1929-08-09 p. 825
Foster v. Superior Court 4 Cal.App.2d 466 Cal. Dist. Ct. App. 1935-02-08 p. 825
Waidley v. Superior Court 51 Cal.App.2d 690 Cal. Dist. Ct. App. 1942-05-04 p. 825