Parker v. Board of Dental Examiners

NOURSE, P. J.

Pending an appeal from a judgment of the superior court affirming an order of respondents sus

[157]

pending petitioner’s license to practice dentistry the petitioner has moved this court for a writ of

supersedeas.

The petitioner relies upon the express provisions of section 4b of article VI of the Constitution, which confers jurisdiction upon, the District Courts of Appeal to issue “all other writs necessary or proper to the complete exercise of their appellate jurisdiction.” The respondents reply that, notwithstanding these express provisions of the Constitution, the rule of decision is that “

Supersedeas

will issue only to restrain the court below or its officers” and that it “will not issue to restrain or prevent a party from acting or proceeding under a judgment from which an appeal has been duly taken where no process of or action by the court below is involved.”

(In re Imperial Water Co.,

199 Cal. 556-558 [250 Pac. 394, 395].)

Many authorities following the same rule are cited, including

Wood

v.

Board of Fire Commrs.,

50 Cal. App. 594, 596 [195 Pac. 739, 740], where the District Court, in denying

supersedeas

in an appeal from a judgment denying prohibition, said: “Thus, by rule and practice, we are divested of a power which the Constitution has expressly conferred."

The parties agree that there is no authority in this state expressly covering the point at hand, as none of the cases cited involve a proceeding in

certiorari.

For that reason the petitioner urges that we should issue a writ of