Danley v. Superior Court

PLUMMER, J.

This is an application by the petitioner for a writ of prohibition commanding and directing the respondent, the Superior Court of the county of Merced, J. J. Trabucco, Judge presiding, from further proceeding with the hearing of or disposition of a certain motion made by the other respondents above named to vacate, set aside, and annul an order theretofore made reinstating a temporary restraining order pending the determination on appeal of an action prosecuted in said court entitled “L. E. Danley, Plaintiff,

v.

Merced Irrigation District, C. E. Kocher, L. L. Burehell, E. V. Givens, George Bloss, Jr., C. L. Garvin and E. F. Treadwell, Defendants.”

The facts involved are in substance as follows: That on or about the eleventh day of September, 1923, the petitioner filed a complaint in the superior court of Merced County having for its purpose the restraining of the Merced Irrigation District and its directors from making or entering into certain contracts relating to water and water rights set out in the complaint; that at the time of the filing of the complaint the court issued a temporary restraining order and an order to show cause why a temporary injunction should not be issued pending the trial of the action; that at the time set for the respondents to show cause the defendants in said action, the respondents in this, appeared and filed demurrers to the plaintiff’s complaint, which demurrers were subsequently sustained by the court without leave to the plaintiff to amend his complaint in said actioh; that the order of the court sustaining the demurrers of the defendants in the action referred to was made and entered on the twenty-eighth day of September, 1923. The court also at said time denied the plaintiff’s petition for a temporary injunction. On the twenty-ninth day of September, 1923, on the application of the plaintiff in said action, the petitioner in this, the court made an order reinstating the original restraining order pending the appeal or appeals by the plaintiff from the order of the court denying the plaintiff’s application for a temporary injunction and from any

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judgment that might be entered in said action following the court’s order sustaining the defendant’s demurrers to the plaintiff’s complaint. Thereafter and on the twenty-ninth day of September, 1923, the said Superior Court made and entered its judgment of dismissal of the action herein referred to based upon its order theretofore made sustaining the defendants’ demurrers to plaintiff’s complaint without leave to amend, immediately after the entry of the judgment herein referred to and on the same day the plaintiff duly served and filed his notice of appeal from the order denying his application for a temporary injunction and also from the judgment of dismissal entered after sustaining the defendants’ demurrers. The order reinstating the restraining order pending the appeals above mentioned was made without notice. On the ninth day of October, 1923, the defendants in the action referred to, the respondents in this, served upon the plaintiff in said action, the petitioner in this, a notice of motion to set aside the order reinstating the restraining order herein referred to and on the sixteenth day of October, 1923, moved said court to vacate such order. At the time set for the hearing of this latter motion, the petitioner herein appeared by his attorneys and objected to the consideration of said motion on the ground that the court had no jurisdiction to hear the same; that, notwithstanding said objection so interposed, the Superior Court proceeded to entertain said motion and will, unless restrained by the order of this court, proceed to pass upon the same. On the part of the petitioner it is here contended that, immediately upon filing his notice of appeal in the action referred to, the trial court was immediately divested of jurisdiction to entertain or hear any motion pertaining to or to take any proceedings whatsoever in relation to the matters embraced in said action or the orders appealed from. On the part of respondents it is contended that, as the reinstatement order was made without notice, the motion to vacate comes within the provisions of section 532 of the Code of Civil Procedure, which reads: “If an injunction is granted without notice to the person enjoined, he may apply, upon reasonable notice to the judge who granted the injunction, or to the court in which the action was brought, to dissolve or modify the same.” The literal reading of this section would seem to