Figgs v. Superior Court

FILES, J.

Petitioner Orville A. Figgs has petitioned for a writ of prohibition to stay further proceedings in the superior court in the ease of

Ponderosa Sky Ranch

v.

Orville A. Figgs, Okay Improvement Corporation,

and others. That is the case in which we have today affirmed an order denying a motion made by Okay Improvement Corporation for change of venue to Tehama County. The writ of prohibition is sought upon the ground that there is pending in the Superior Court of Tehama County another action between the same parties involving the same subject matter.

The pertinent facts, as set forth in the petition and the return, are as follows:

On October 10, 1960, Ponderosa Sky Ranch filed an action in the Los Angeles Superior Court against Okay Improvement Corporation. On October 18, 1960, defendant Okay appeared in the action. On April 3, 1961, Figgs was for the first time made a party to that action by the filing of a second amended complaint. That action is for declaratory relief on a contract, and involves a demand that title and possession of Tehama County land be restored to plaintiff. On May 5, 1961, Figgs filed in the Superior Court for Tehama County a quiet title action against Ponderosa Sky Ranch relating to the same real property. Service of process in the Tehama action was made upon Ponderosa on May 20, 1961. On November 6, 1961, Figgs was first served with process in the Los Angeles action. On December 18, 1961, Figgs made a motion in the Los Angeles Superior Court to abate the action pending there on the ground that the Tehama County action had priority and that the Los Angeles Superior Court had no jurisdiction to proceed, under the authority of

Myers

v.

Superior Court,

75 Cal.App.2d 925 [172 P.2d 84].

[233]

When actions are pending in two different superior courts involving the same parties and the same subject matter, priority attaches when a court first assumes jurisdiction-through the service of process on a defendant.