Klement v. Superior Court

PULLEN, P. J.

—By this writ petitioner seeks to arrest the proceedings in the superior court until a pending appeal has been determined.

Petitioner represents that the McCormick-Saeltzer Co., a corporation, filed a complaint against him, based upon a contract asking for declaratory relief and for a decree terminating the contract according to its terms. To this complaint Element filed an answer denying the material allegations of the complaint and at the same time filed a cross-complaint in which he named McCormick-Saeltzer Company, a corporation, and certain individuals not parties to the original action, as cross-defendants, wherein he sought to recover damages for an alleged tort, viz.: defamation of character, claiming that by reason of an unlawful combination and conspiracy by the cross-defendants named, he suffered damage because of the demoralization of his standing with the employees of McCormick-Saeltzer Company, a corporation, and the public generally.

To this cross-complaint plaintiff and cross-defendants interposed a demurrer, which was sustained without leave to amend, and the cross-complaint was dismissed. From the order of dismissal petitioner filed a notice of appeal. The trial court then set for trial the issues raised by the original complaint and answer, whereupon petitioner sought this writ of prohibition on the ground that respondent superior court was without jurisdiction to try the issues raised by the complaint until the appeal from the order of dismissal of the cross-complaint was determined.

[458]

The contention is based upon section 946 of the Code of Civil Procedure, which provides in part that, “Whenever an appeal is perfected as provided in the preceding sections of this Chapter, it stays all further proceedings in the court below upon the judgment or order appealed from . . . ,” and in support thereof cites

Eisenberg

v.

Superior Court,

193 Cal. 575 [226 Pac. 617, 618] ;

Messenkop

v.