Gunder v. Superior Court

CRAIG, J.

On October 23, 1926, suit was filed in the Superior Court of Riverside County by Samuel H. Gunder against his then wife, the petitioner herein, for the cancellation of a property settlement theretofore consummated between them. Judgment was rendered in favor of the plaintiff on November 4, 1927, declaring null and void a quitclaim deed, and a bill of sale, awarding him possession of the real and personal property, and ordering an accounting by the defendant. A referee was therein appointed to take an account of all property and moneys received by the defendant from the plaintiff or through re-investment of the proceeds thereof, and the defendant was restrained from encumbering, transferring or removing any of the subject matter of the suit pending such accounting. Said judgment further provided as follows:

“That upon the rendition of said account of said referee to the court, and the court’s approval thereof, said plaintiff is and shall be given a final judgment against said defendant for the immediate possession of any and all personal property, including bonds and money and proceeds thereof in the hands of said defendant, or under her control or any one on her behalf, belonging to said plaintiff, or the value thereof, as well as also for a final judgment in favor of said plaintiff and against said defendant in such amount as the court may find that the plaintiff is entitled to.”

The defendant, petitioner herein, appealed to the Supreme Court from “the judgment in the above entitled action, and each and every part thereof,” on November 14, 1927, and the appeal is still pending. Prior to the date last mentioned, and on the tenth day of November, 1927, the plaintiff, Samuel H. Gunder, moved the trial court for the appointment of a receiver, whereupon the same person who had theretofore been appointed referee was designated as such receiver. On May 28, 1928, at the instance of the plaintiff, and without notice, another person was designated as referee in the place and stead of the former, “with full and complete authority to take all necessary steps to receive and hear the accounting specified and required by the court in

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its certain judgment made and entered in the above entitled cause on the 4th day of November, 1927.” The substituted referee having set a time and place of hearing, petitioner appeared by counsel and objected to any proceedings before him, upon the ground that he had no jurisdiction, which objection was overruled and the matter was reset for hearing. She then filed in this court a petition for a writ of prohibition directing that the respondent court and each of the persons named as referees refrain from proceeding in the case of