People v. Stutz

California Court of Appeal Nov 15, 1944 No. Civ. 3369Published

Before: Marks

AI Brief

AI-generated · verify before citing

Holding. The court held that an injunction requiring the cessation of hotel operations and major building reconstruction is mandatory in effect because it compels the surrender of vested property rights, and is therefore automatically stayed pending appeal. Consequently, a formal writ of supersedeas is unnecessary at this time.

Issues

Whether an injunction ordering the cessation of hotel use and building reconstruction is mandatory or prohibitory in nature.
Whether a mandatory injunction is automatically stayed by an appeal.
Whether a writ of supersedeas is required when an injunction is automatically stayed by operation of law.

Disposition. denied

Quotations verified verbatim against the opinion

“the effect of the injunction is mandatory and is automatically stayed by the appeal.”

“Under these circumstances there is no occasion for the issuance of a writ of supersedeas.”

“The petition for a writ of supersedeas is denied without prejudice to making another application therefor should proper occasion arise.”

[792]

MARKS, J.

This is a petition by Prank Mitchell and Jeanette Mitchell for a writ of supersedeas to stay, pending appeal, the execution of a judgment declaring that the use of the second, third and fourth stories of a building on Third Street, between Broadway and “C” Street in the city of San Diego, is dangerous to life and property, and that those portions of the building constitute a public nuisance, and ordering that all use of such portions of the building cease until major changes be made, including the removal of the fourth floor.

The building is owned by defendant Walter Stutz and petitioners are tenants of the three stories involved. The first floor is occupied by a restaurant and a night club and is not involved here or in the abatement action. The other three floors are used as a hotel accommodating an average of ninety guests.

It is admitted that the action is not brought under any specific state law or ordinance of the city of San Diego, but under the general powers of a municipality,to abate a public nuisance under the provisions of section 731 of the Code of Civil Procedure. It is also admitted that there is no state law or ordinance of the city of San Diego which requires the remodeling of a building long constructed, in the manner required by the judgment, although the method of construction appearing in the building in question is not now permitted.

The building was constructed over fifty years ago. The trial court found that it “was built in form and of materials quite commonly used at that time; and it is in its present form, not substantially changed in form or materials from its condition at the time of its construction, except as to normal wear and tear suffered by a building of such age, and except insofar as the passage of time has caused the wood in said building to become older, drier and more highly inflammable; that at the time said building was constructed, no statute or ordinance specifically forbade such construction.” The trial court also found various defects in construction that rendered the three upper stories of the building a firetrap and dangerous to the occupants and to adjoining buildings in case of fire.

In deciding a petition for supersedeas we have nothing to do with the ultimate decision of the appeal on its merits and we must presume the truth of the findings of the trial court.

People v. Stutz

AI Brief

MARKS, J.

More from California Court of Appeal

Related research

AI Brief