Texas Co. v. Superior Court

California Court of Appeal Jul 21, 1938 No. Civ. 11863Published

Before: Wood

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Holding. A writ of mandate will not issue to compel a lower court to change its decision or to correct judicial errors when the court has already exercised its jurisdiction and discretion in ruling on the motions before it.

Issues

Whether a writ of mandate is the appropriate remedy to compel a superior court to restore a demurrer to its calendar after the court has already denied a motion to do so.
Whether the court's prior rulings on motions to strike and dismiss constitute a judicial determination that precludes the issuance of a writ of mandate.

Disposition. denied

Quotations verified verbatim against the opinion

“The writ of mandate cannot be used to correct the errors of a court in passing upon questions regularly submitted to it in the course of a judicial proceeding, or to control the exercise of its discretion.”

[652]

WOOD, J.

Petitioner seeks a writ of mandate to compel the Superior Court to place upon its calendar and hear and determine the issues raised by its demurrer to the original complaint.

An action was commenced in the Superior Court on April 9, 1934, in which Barney Brown and more than 650 others are the plaintiffs and The Texas Company, petitioner herein, is the defendant. The plaintiffs, claiming to be tenants in common owning and holding certain interests in an oil lease of which the defendant is assignee, seek to recover of the defendant a large sum of money for failure to properly and diligently drill for oil. The action was filed by Raymond J. Kirkpatrick as attorney for the plaintiffs. On September 28, 1934, an order was made by the court by which Avery M. Blount was substituted as attorney of record in the place and stead of Raymond J. Kirkpatrick. The order recites that it was made on the motion of J. Perry Lucas who “appeared in person and as attorney in fact for the other plaintiffs”. On September 29, 1934, a demurrer to the complaint was filed and set for hearing. It was taken off calendar on October 4, 1934, upon stipulation of Mr. Blount and the attorneys for the defendant. On May 16, 1938, the defendant served notice upon Mr. Blount as attorney for the plaintiffs that it would present a motion to the court on May 18, 1938, to restore to the calendar the demurrer which had been filed on September 29, 1934, stating as one of the grounds for the motion that the attorney for the plaintiffs had refused to stipulate for the restoration of the demurrer to the calendar. The motion was presented to the court and denied. In its petition in this court petitioner alleges: “No amendment to the said complaint filed April 9, 1934, and no amended complaint or other pleading superseding or taking the place of said complaint has ever been filed in said action by the plaintiffs, or any of them, or by any attorney or attorneys of record for the plaintiffs, or any of them.” Upon this allegation we issued an alternative writ.

From the answer filed by the respondent court and from undisputed statements made by counsel upon the hearing before this court it appears that in June, 1936, Lane & Lane and J. E. Pawson were substituted as attorneys for the plaintiffs in the place and stead of Avery M. Blount. The substitution was signed by “J. Perry Lucas attorney in fact for

Texas Co. v. Superior Court

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WOOD, J.

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