Hanrahan v. Superior Court

ADAMS, P. J.

On or about February 21,1947, River Rock, Incorporated, filed an action in Merced County against petitioner, Marshall S. Hanrahan, seeking a judgment for goods sold and delivered and for rentals of equipment. Defendant sought and, on April 21st, was granted a change of venue to Santa Clara County, the place of his residence.

On April 22, 1947, plaintiff filed in the Merced Court a dismissal of said action without prejudice, and on April 23d filed a new action based upon the same grounds as the former one, but alleging, as the first had not, that the oral contract upon which the action was based was entered into in Merced County, and was to be performed there, and that the obligation to pay the sums sought was incurred there. Summons in said action was served upon defendant.

On May 18th, petitioner Hanrahan filed in this court a petition for an alternative writ of prohibition, seeking to prohibit the trial court from proceeding with the second action; and said writ was issued returnable before this court on June 23d. River Rock, Incorporated, made return to the writ alleging that a

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of the dismissal of the first action filed in Merced County was forwarded to the Santa Clara Court; also that the second action filed in Merced County differed from the first in the respects above stated. It alleged that petitioner had a plain, speedy and adequate remedy at law and that the proper course for him to pursue was to present his objections to the Merced County Court by way of motion to dismiss or motion for change of venue; that the Merced County Court had jurisdiction of the subject matter and the parties. It also filed notice of motion to quash the alternative writ of prohibition.

Upon the hearing on the return day, petitioner filed a certificate of the county clerk of Santa Clara County, dated June 17th, which certified that plaintiff’s original action was regularly transferred to Santa Clara County, that the record was transmitted by the clerk of the Merced County Court to

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the county clerk of Santa Clara County, at the instance of plaintiff, and that it was received, filed and docketed by the clerk of Santa Clara County on June 4th. He also certified that no dismissal of said action had ever been addressed to and filed with him as clerk of said court, though a purported dismissal of same filed in Merced County was among the records transmitted by the clerk of the Merced County Court; also, that defendant Hanrahan had, on June 5th, filed in the Santa Clara Court his answer to plaintiff’s complaint, and a cross-complaint against Eiver Eock, Incorporated. It is conceded by counsel for Eiver Eock, Incorporated, that the action transferred to Santa Clara County is still pending there.