Adolph v. Municipal Court

KINCAID, J. pro tem.

*

Petitioners seek prohibition to restrain the Municipal Court of Los Angeles Judicial District from further proceedings in an action entitled John H. Pankratz v. William E. Adolph, and others, Number Van Nuys 575723. Petitioners heretofore filed a demurrer to the complaint in said action on the ground that there is a prior action pending in the superior court between the same parties for the same cause. The demurrer was overruled. Petitioners allege that the municipal court action will be brought to trial before their said superior court cause can be heard unless restrained by proper writ and that they have no plain, speedy and adequate remedy in the ordinary course of the law.

The order overruling the demurrer is not appealable. (Code Civ. Proc., § 963.) To compel petitioners to submit to an unwarranted retrial of the cause, and then appeal from the judgment if adverse to them, would not afford them speedy or adequate relief. The writ may therefore be used to test the jurisdiction of the municipal court.

(Tomales Bay etc. Corp.

v.

Superior Court,

35 Cal.2d 389, 392 [217 P.2d 968] ;

Greene

v.

Superior Court,

37 Cal.2d 307, 310 [231 P.2d 821].)

On October 24, 1958, petitioners filed an action in the superior court against Pankratz and one Irving T. Cane, as defendants, charging trespass of their property, interference with certain easements and for damages.

Thereafter Pankratz filed the above numbered municipal court action as plaintiff, naming petitioners herein, and seven other individuals as defendants. This is a suit to foreclose a mechanic’s lien filed as a lien upon real property alleged to be owned by defendants, said lien being for the furnishing of work and materials performed and used on said property at the special instance and request of William E. Adolph, in the sum of $1,783.

[200]

Pankratz then filed his answer and cross-complaint to the second amended complaint of petitioners in the superior court action in which he alleges that at the special instance and request of Adolph he did furnish certain labor and materials necessary to do improvement work on the same real property as is described in his complaint in the municipal court action ; that the reasonable value thereof is $1,783 which Adolph promised to pay but which remains unpaid.