Norman v. Superior Court

CURTIS, J.

Application for writ of mandate prayed to be directed to the Superior Court of the County of Los Angeles, Ira F. Thompson, Judge, to compel respondent to forthwith proceed with the trial of a certain action pending in said court.

Petitioner Jennie L. Norman instituted in the Superior Court of the County of Los Angeles an action for divorce against her husband John W. Norman. Subsequently, the defendant in said action was convicted of an assault with a deadly weapon, a felony, and sentenced by the court to confinement in the state prison at San Quentin for the period prescribed by law. Thereafter, and while said defendant was still confined in said state prison under said judgment of imprisonment, said divorce action came on for trial. After two short continuances, said action was again set for trial on the second day of October, 1925, at which time the defendant, through his attorney,, moved the court, after due notice of the hearing of said motion had been given to the plaintiff in said action, for an order requiring plaintiff to pay to the sheriff of the county of Los Angeles the sum demanded by said sheriff for the necessary expense in bringing the defendant from said state prison to the county of Los Angeles and for his return to said prison, on the ground that said defendant was a necessary witness at said trial and a party to said action. Thereafter and on the twenty-seventh day of October, 1925, the court granted said motion and further ordered that the defendant, John W. Norman, be brought from said prison to be present at the trial of said action, and that at the conclusion thereof that he be returned to said prison. Said order provided that said action be continued from day to day until the money required for the transportation of said defendant from said prison and return was paid by plaintiff to the sheriff as provided by said order, and that upon its payment, after proper notice given, the court would set said divorce action for trial. The plaintiff refused to pay the money to the sheriff, as ordered by the court, or any money whatever,

[707]

but has requested the court to set said cause for trial, and the court has refused to do so. The matter comes before us on an original petition for writ of mandate directed to the trial court, before which said action is pending, and the judge thereof, requiring said court to forthwith proceed with the trial of said action. Said petition sets forth the facts substantially as recited above. To this petition respondents have interposed a demurrer. The only real issue raised by the demurrer is as to the sufficiency of the petition to entitle the petitioner to the relief prayed for. The answer contains no substantial denial of any of the material facts alleged in the petition, nor does it set forth any new matter which, if true, would defeat petitioner's right to the writ if she is entitled to the same upon the facts stated in the petition. There is, therefore, no issue of fact raised by the pleadings. The proceeding, therefore, will be considered by us on the facts as alleged in the petition. The only real question presented is whether such facts are sufficient to entitle petitioner to the relief prayed for.