Primm v. Superior Court

McLAUGHLIN, J.

Application for a writ of prohibition. In an action entitled

Menzel

v.

Primm et al.,

pending in the superior court in and for Shasta county, an attachment was issued and levied on certain realty owned by the defendant Primm. The trial of the cause resulted in a judgment against the plaintiff and in favor of said defendant. After the judgment had been rendered and entered, the court, on motion of the plaintiff, Menzel, made an order continuing the said attachment in force upon compliance by plaintiff with the terms of said order, which terms conform to the provisions of section 946 of the Code of Civil Procedure. The plaintiff filed the required undertaking, and perfected his appeal within the specified time, and the defendant, who made timely and sufficient objections to the motion and order mentioned, commenced this proceeding to restrain the court from continuing the attachment in force pending an appeal from the judgment. The right of this court to consider this application or pass upon the main question involved is challenged by respondent, who insists that the petitioner has a plain, speedy, and adequate remedy in the course of the law, and that prohibition will not lie to restrain an act which has been fully accomplished. The rules thus invoked are well settled, and it only remains to determine whether the case at bar falls within either or both of them.

[210]

As an appeal from the order here assailed would, in the ordinary course of judicial proceedings, probably consume as much time as the appeal from the judgment, the practical effect of holding that the remedy by appeal is speedy and adequate would be to deprive the petitioner of all redress. The sole purpose of the order was and is to continue the lien until an appeal from the judgment can be passed upon by the appellate court, and we fail to see how a separate, but concurrent, appeal to the same court can be deemed either speedy or adequate, when this purpose would probably be fully accomplished before such concurrent appeal could be heard. If the continuance of the lien is without legal authority, the petitioner is entitled to have his property relieved from the effect of judicial usurpation, and no remedy „can be speedy or adequate which would postpone such relief until the unauthorized lien had expired with the order continuing it.