Wright v. Superior Court

POOLING, J.

Petitioners herein both individually and as executrices of the last will of Ellen G. Swall, deceased, are defendants in an action pending in the Superior Court in and for the City and County of San Francisco, in which the respondent Mary Kaliterna is plaintiff. The action is one for declaratory relief and for specific performance of an alleged agreement to execute a renewal lease covering a parcel of real property in Santa Clara County. The action was commenced in Santa Clara County against the decedent shortly before her death. Subsequently by order of the superior court in that county the petitioners herein as executrices were substituted as defendants. Later an order was made permitting the joinder of petitioners as defendant in their individual capacity. By stipulation of counsel the action was ordered transferred to the city and county of San Francisco for trial. The action has now gone to judgment in plaintiff’s favor but findings were not filed until after the entry of judgment. We issued an alternative writ of prohibition, conceiving that it was still in the power of the trial court to correct this irregularity and that prohibition might for this reason lie if the court was, as alleged, acting in excess of its jurisdiction.

We have now concluded that the court has jurisdiction both of the parties and the subject matter and that the only remedy open to petitioners is by an appeal from the judgment. (21 Cal.Jur. 583.)

Petitioners’ claim that the action is a local one triable only in Santa Clara County because the real property is located there is not tenable. The action was commenced in Santa Clara County which is all that the Constitution requires. (Cal.Const., art. VI, § 5.) The action having been commenced in the county wherein the real property is situated may subsequently be transferred to the superior court of another county for trial. (25 Cal.Jur. 862.)

The point that the court has no jurisdiction of the persons of petitioners as individuals is based on the claim that an action of this character may not be maintained at the same time against defendants both in their representative capacity as executrices and in their individual capacity. The objection

[153]

if good (a question that we need not decide) is not jurisdictional. There may be a misjoinder of parties or of causes of action but the court has jurisdiction of both. Its action in not dismissing petitioners as defendants in their individual capacity if error is error in the exercise of jurisdiction not properly reviewable on prohibition. (21 Cal.Jur. 584.)