Kaye v. Superior Court

THE COURT.—Prohibition.

One Newell obtained a judgment in the justice’s court against Katze

et al.,

from which defendants appealed to the superior court, where the ease was submitted for decision upon an agreed statement of the facts involved. The court adopted the agreed statement as its findings, and gave judgment thereon for plaintiff. Thereafter defendants, pursuant to notice and upon statutory grounds, moved the court for a new trial, which motion for new trial so made by defendants the plaintiff moved to dismiss. The court refused to grant the motion so made by plaintiff to dismiss, and continued to a later date the hearing of defendants’ motion for a new trial. Plaintiff then applied to this court for an alternative writ of prohibition directed to the respondent, requiring it to desist from further proceedings in the matter. The application was based upon the ground that the court was without jurisdiction to entertain a motion for new trial of a case on appeal from a justice’s court, where the trial was had upon a stipulation of the facts

[270]

involved. The writ was granted on November 25, 1916, and by the clerk issued in form prepared and submitted by petitioners’ attorneys, requiring respondent to desist from further proceedings or ruling upon defendants’ motion for new trial then pending before it,

until the 18th of December,

-

1916,

instead of until the further order of the court, as required by section 1104 of the Code of Civil Procedure. It appears from the return that after the expiration of said time, to wit, on

December 27, 1916,

the court heard the motion for new trial and granted the same. In so doing, since the command of the writ was merely to desist from any ruling until

December 18th,

there was no violation of the order. It thus appears that the act, the performance of which it was sought to restrain, having been done, and conceding the court acted in excess of its jurisdiction, as to which, upon the authority of