McCarthy v. Superior Court

KNIGHT, J.

—On May 23, 1944, a peremptory writ of prohibition was granted by this court prohibiting the Superior

[43]

Court in and for the City and County of San Francisco from enforcing by execution or contempt proceedings an order theretofore made by said court in the exercise of its probate jurisdiction in a proceeding instituted therein under the authority of sections 613, 614 and 615 of the Probate Code

(McCarthy

v.

Superior Court,

64 Cal.App.2d 468 [149 P. 2d 55]); and on June 6, 1944, the applicant for the writ gave notice of motion to modify the decision granting the writ by adding thereto a provision fixing and allowing damages including attorneys’ fees, and an allowance of costs amounting to $337. It is petitioner’s contention that he is entitled to such allowances by virtue of the provisions of section 1095 of the Code of Civil Procedure, which by section 1105 of the same code are made applicable to prohibition proceedings.

Section 1095 reads as follows: “If judgment be given for the applicant, he may recover the damages which he has sustained, as found by the jury, or as may be determined by the court or referee, upon a reference to be ordered, together with costs; and for such damages and costs an execution may issue; and a peremptory mandate must also be awarded without delay; provided, however, that in all cases where the respondent is a state, county or municipal officer, all damages and costs, or either, which may be recovered or awarded, shall be recovered and awarded against the state, county or municipal corporation represented by such officer and not against such officer so appearing in said proceeding, and the same shall be a proper claim against the state, or county, or municipal corporation for which such officer shall have appeared, and shall be paid as other claims against the state, county or municipality are paid; but in all such eases, the court shall first determine that the officer appeared and made defense in such proceeding in good faith.” From the foregoing provisions it will be seen that if the motion is granted the award of damages and costs must be paid by the state.