McClenny v. Superior Court

HERNDON, J.

This court issued its alternative writ of prohibition upon petitioner’s allegations to the effect that respondent court was acting in excess of its jurisdiction in refusing to grant petitioner’s motions (1) to dismiss the pending divorce action following the death of his wife, the plaintiff therein; (2) to terminate the receivership existing in the action, and (3) to prohibit the substitution of the special administrator of the estate of the deceased plaintiff in her place and stead.

1

Petitioner herein further alleged that he had “no other adequate remedy at law. His property is presently bound in the hands of the Receiver. His home is

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under foreclosure and unless he obtains speedy relief from the Court, he will suffer irreparable damage. ’ ’

Upon oral argument, however, petitioner took a position which is completely inconsistent with the allegations of his petition. The statement of petitioner’s counsel was as follows: “We are not suggesting that, or request that, the ease be terminated forthwith, that the receiver be dismissed forthwith. But we are stating that the receiver’s duties are limited to the preparation of his final account and anything else that may be required, in order that his duties be terminated and all his activities be directed toward that one single purpose, with the exception that the Court does not have jurisdiction to go beyond any orders which may be required for the purpose of termination. ’ ’ Petitioner further stated:

"In the first place, we have not maintained that the receiver give up title to his property and turn anything over until the community interest is determined, and I think I announced at the very outset we are asking for very limited relief here, and the relief that we are asking for is that the court in the divorce action not determine the community interest, if any, of the estate. Now it is perfectly agreeable to us that the receiver retain possession until the community interest be determined, and in the proper forum. We never objected to that.”

2

Petitioner’s complete change in position makes it manifest that no error was committed by the trial court, and that it did not act in excess of its jurisdiction in refusing to grant petitioner’s motions seeking the immediate entry of a judgment of dismissal, with costs, and a discharge of the receiver. This is particularly true in view of the fact that the last statement above quoted was made immediately after counsel for the receiver, one of the real parties in interest herein, had advised this court that the trial judge had said “that he was going to see that the receivership was wound up, dissolved and terminated and wasn’t considering trying any title, doing anything other than was necessary to settle the accounts of the receiver and get the action terminated, and I suppose that would include under the