Berg v. Superior Court

KINCAID, J. pro tem.

*

Petitioner, Donald R. Berg, applies for a writ of prohibition to restrain the respondent court from taking any further proceedings based upon the motion of Carol D. Berg, the real party in interest, for issuance of writ of execution in the sum of $5,097.97, or any other sum, against petitioner based on the interlocutory judgment of divorce in that certain superior court action entitled

Carol D. Berg,

plaintiff v.

Donald B. Berg,

defendant, Pasadena No. D-16791.

This motion for issuance of writ of execution came on for hearing, additional evidence was received and the court indicated its intention to issue such writ by a date certain. It is the contention of petitioner that the said court is acting and will act without or in excess of its jurisdiction in ordering issuance of such writ and that he has no plain, speedy and adequate remedy in the ordinary course of the law. Real party in interest contends that the remedy by appeal is adequate. While an appeal might be taken from the order in question, being one made after judgment, no purpose but delay would be served, to the prejudice and expense of the parties, by refusing to decide the jurisdictional question at this time. Under such circumstances as are here shown a writ of prohibition is a proper remedy.

(Hagan

v.

Superior Court,

53 Cal.2d 498, 501, 502 [2 Cal.Rptr. 288, 348 P.2d 896];

City & County of San Francisco

v.

Superior Court,

53 Cal.2d 236, 243 [1 Cal.Rptr. 158, 347 P.2d 294];

Dell

v.

Superior Court,

53 Cal.App. 436, 439 [200 P. 85].)

For the reasons hereinafter indicated the superior court is without jurisdiction to order issuance of the said writ of execution.

The interlocutory judgment, upon which execution is sought, is one for divorce which incorporated