Castera v. Superior Court

CONREY, P. J.

Mandamus. There is now pending in the Superior Court of the county of Los Angeles and in the de

[695]

partment thereof presided over by the respondent judge, an action in which one J. E. Youtz is plaintiff and the petitioner is one of the defendants. Petitioner and other defendants in that action, having been duly served with summons, filed a demurrer to the complaint. After the filing of his complaint, the plaintiff Youtz was imprisoned in the state penitentiary pursuant to his conviction of a felony, and is now undergoing • a three years’ term of imprisonment. On account of such imprisonment of the plaintiff, the respondent judge has ordered said demurrer stricken from the calendar and refuses to hear and determine the same or proceed further in said cause. The petitioner seeks a peremptory writ of

mandamus,

commanding that said cause be restored to the calendar of said court and that the court proceed to hear and determine the same. •

To this petition a general demurrer is filed, alleging that the petition does not state facts sufficient to entitle the plaintiff to the relief sought by him. It is understood by the parties that our determination of this demurrer is to dispose of the case without further hearing. Permission was granted respondents’ counsel to file a brief in support of the demurrer, but no brief has been presented.

“A sentence of imprisonment in a state prison for any term less than for life suspends all the civil rights of the person so sentenced and forfeits all public offices and all private trusts, authority, or power during such imprisonment. ’ ’ (Pen. Code, sec. 673.) We are not aware of any decision covering the precise question involved in this matter. It is stated that even where conviction of a felony results in civil death (as it does in this state upon a sentence of imprisonment for life), the weight of authority is apparently in harmony with the English doctrine to the effect that the convict still remains subject to be sued. (8 Ruling Case Law, p. 707, and citations there found.) This doctrine is specifically recognized in this state in the statutory provisions allowing a divorce to be granted upon proof that defendant has been convicted of a felony.