Searcy v. Kay

PREWETT, P. J.,

pro tem.

This is an application for a writ of mandate directing the defendant, as said clerk, to transmit to the clerk of the superior court of the city and county of San Francisco the files in an action for divorce commenced by plaintiff against one C. L. Searcy, the material events of which occurred in the following order:

1. September 19, 1919, action commenced in the superior court of said city and county.

[793]

2. October 10, 1919, place of trial changed to the superior court of the county of Humboldt on motion of the defendant.

3.

After answer and on January 9, 1920, the place of trial was changed back to the superior court of said city and county in order to promote the convenience of witnesses.

4. ' On the same day the defendant perfected an appeal to the supreme court from the order changing the place of trial to the city and county of San Francisco.

5. On February 11, 1920, on due notice and affidavit, said superior court of the county of Humboldt made its order allowing to plaintiff certain sums by way of alimony and counsel fees.

6. On March 16, 1920, this proceeding was commenced.

7. Subsequent to the commencement of this proceeding the plaintiff procured the issue of process to compel the defendant, Searcy, to comply with said order for the payment of alimony and counsel fees.

The defendant, Kay, refuses to transmit the papers in conformity with said order changing the place of trial. The petition herein contains an allegation that he bases his refusal upon the ground that the appeal from the order changing the place of trial stays all proceedings upon such order. However, in his answer, he expressly disclaims this as a reason. That the appeal does not stay proceedings is placed beyond all question by the language of the code itself. (Code Civ. Proc., sec. 949.)

The defendant pleads in his answer that it became necessary to retain the papers in order to make out and certify the usual copies to be used on appeal. But if this point ever had any force it has long since ceased to constitute a justification. This proceeding was not commenced until more than two months after the appeal was taken.