Shahen v. Superior Court

MARKS, J.

Petitioner seeks a peremptory writ of mandate commanding the respondent court to increase the bond required of plaintiffs in the case of

Weadon

v.

Shahen,

in the Superior Court of San Bernardino County, wherein plaintiffs sought to restrain the sale of certain real property under execution issued on a judgment in another case. The trial judge fixed the bond on the temporary injunction at $500. Petitioner’s judgment, with interest, exceeds $2000, and the property which he sought to sell under execution has a value of at least $4600. Petitioner maintains that the lien of his judgment on the property will expire on September 17, 1941. He maintains that it was a breach of discretion on the part of the respondent judge to fix the bond on the temporary injunction at an amount less than the amount of his judgment.

The undertaking in question was given under the provisions of section 529 of the Code of Civil Procedure. This section is found in Part II, Title VII, chapter three of that code. Title VII treats with “Provisional Remedies in Civil

[188]

Actions, ’ ’ and a bond is ordinarily required only on the issuance of a temporary injunction.

(Lambert

v.

Haskell,

80 Cal. 611 [22 Pac. 327].) A temporary injunction has served its purpose when, after a trial on the merits a permanent injunction is issued, upon the issuance of which no bond can be required in the ordinary case.

The case of

Weadon

v.

Shahen

was tried on its merits and a permanent injunction was issued enjoining petitioner from selling the real property under the execution. There is an appeal pending from that judgment.