Magee v. Superior Court

This is a petition for a writ of review, the object of which is to annul and vacate a certain order made by the respondent, the claim being and the petition declaring that the respondent acted in excess of its jurisdiction in making said order; that there is no appeal therefrom, and that there is no other plain, speedy and adequate remedy.

The facts alleged in the petition are as follows: On the twenty-seventh day of April, 1908, Ellen Magee, Catherine Magee and James Magee, Sr., as plaintiffs, in an action for a partnership accounting, obtained a judgment against James Magee, Jr., as defendant therein, for the sum of $4,877.82, together with costs amounting to $12.15. On the eleventh day of May, 1908, and before notice of said judgment had been served upon or given the defendant, James Magee, Jr., the latter served and filed in said action "a notice of motion for a new trial, and, at the same time, served upon plaintiffs a proposed statement on said motion, and said motion and said statement are now pending in said court." On the nineteenth day of September, 1908, "the defendant served upon the plaintiffs in said action a notice of appeal from said judgment and the whole thereof," and on the twenty-first day of September, 1908, filed with the clerk of said court said notice of appeal. On the nineteenth day of September, 1908, after the service of the notice of appeal, the defendant filed an undertaking on appeal in the sum of $300 and *Page 156 a further undertaking in the sum of $10,000 to stay all proceedings in said action.

The petition proceeds to state that on August 5, 1908, in an action for the partition and sale of certain real property, situated in the city of Vallejo, and in which the parties thereto had common interests, said action having been instituted by Catherine Magee and Ellen Magee Murphy (nee Ellen Magee) against James Magee, Jr., "a final judgment was duly made and entered therein approving the proceedings of the referees theretofore appointed in said action and confirming the sale of the real property involved therein, and directing said referees, after the payment of the costs, expenses, commissions and attorneys' fees incurred and disbursed in said action, to divide the balance of the proceeds then remaining in their hands amounting to $9,750.00, and forthwith deliver the same to the respective parties entitled thereto, in the following proportions: to Catherine Magee, one-fourth thereof, or $2,437.50; to Ellen Magee Murphy, one-fourth thereof, or $2,437.50, and to James Magee, Jr., one-half thereof, or $4,875.00."

It further appears from the petition that the referees, after the notice of the entry of said judgment and the directions therein contained as to the disposition of the moneys in their hands, and "without any further order or direction of court or any authority so to do, delivered said sum of $9,750.00 to G. G. Halliday, clerk of the superior court of Solano county, and, without any order or direction of the court, the said G. G. Halliday delivered said moneys to George Weniger, county treasurer of Solano county, and said Weniger continued to retain said sum in his possession until the order of the court herein complained of."