Derrer v. Superior Court

WORKS, P. J.

Raymond A. Derrer and Walter A. Stratton were before respondent court in a contest, upon rival petitions, for a determination of the question as to which of the two should be appointed general guardian of a certain minor. The appointment was awarded to Stratton and Derrer appealed from the order making the award. Stratton then sued out a writ of

habeas corpus

in respondent court for the purpose of obtaining custody of the person of the minor, the custody for a long time theretofore having been in Derrer. The latter thereupon applied to this court for a writ of prohibition restraining respondent court from

[155]

determining the

habeas corpus

proceeding and an alternative writ issued.

The writ of prohibition is available only for the purpose of halting the attempted exercise of jurisdiction not possessed by a respondent who is sought to be restrained by it (Code Civ. Proc., sec. 1102; 21 Cal. Jur. 579), and we think a question of jurisdiction is not presented here. Petitioner relies upon

In re Ballas,

53 Cal. App. 109 [199 Pac. 816];

In re Green,

67 Cal. App. 504 [226 Pac. 76];

In re Mathews,

176 Cal. 156 [167 Pac. 873, 874], The first of these eases is of no assistance to us. The effect of the other two is fairly shown by a reference to

In re Mathews.

In that case an appeal was pending, as here, in a guardianship proceeding. During its pendency a writ of

habeas corpus

was issued by the Supreme Court, requiring the production of the person of the minor who was the subject of controversy in the guardianship matter. The court said: “Upon the return, the court concluded that a decision in the