McCarte v. Superior Court

NOURSE, J.

An alternative writ of prohibition was issued on the application of the two petitioners which alleged that they were the joint owners and entitled to the possession of the El Patio dance-hall,- that in a proceeding before the respondent Superior Court entitled

Propper

v.

Poetz

a' receiver was appointed by respondent to take possession of the premises; that neither of these petitioners was a party to said proceeding, had no notice thereof, and was not given an opportunity to be heard therein. Upon motion of respondent, and it appearing to this court that it had been imposed upon in the application for the alternative writ, said writ was set aside and the proceedings were converted into a motion for a peremptory writ of prohibition. Pending this hearing, the death of petitioner McCarte was suggested and her administrator was duly substituted.

The gravamen of the petition is that the order of respondent in appointing a receiver to take possession of the premises was without jurisdiction because the petitioners are the real owners thereof, and as such were not given an opportunity to be heard in the trial below. Upon the.hearing of the motion for a peremptory writ it appeared that, contrary to the allegations of the petition, the petitioner McCarte did appear in the proceedings before the respondent court, and that her claims to the premises were fully heard by the respondent. In so far as the rights of the petitioner McCarte are concerned the respondent court had complete jurisdiction and her petition herein must be denied.

The petitioner Herron claims that he is the joint owner of the premises and that he has had no opportunity

[509]

to present Ms claim to the Superior Court. The return of respondent herein alleges (and this is admitted) that, after the order appointing the receiver had been made, this petitioner appeared for the first time before respondent and asked for a stay of proceedings, stating that he was a claimant of an interest in the premises; that respondent thereupon advised him that if he would make formal application in writing with a proper statement of facts as a basis for a hearing the respondent would then entertain a hearing and act upon any motion or application for relief which said petitioner should present. This petitioner failed to follow this course, and upon the hearing in this court two continuances were granted to enable him to make some showing that his claim of ownership in the premises was