Ingalls v. Superior Court

TAPPAAN, J.,

pro

tem.

The action involved here was filed by the petitioner as plaintiff against Clifford P. Reid, Inc., a corporation, and J. P. Treleven, defendants, in the Superior Court in and for the County of Los Angeles. The complaint was in two counts, the first count setting up a cause of action based upon fraud alleged to have been

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practiced upon plaintiff by defendants in the procuring from her of a contract to purchase certain real property. There are allegations of the payment by plaintiff to defendants of the sum of #1900, and of the service upon defendants of a notice of rescission of the contract. The second count of the complaint is one for money had and received. The prayer for judgment demands the cancellation of the contract and the return of the money paid thereunder. The answer of the defendants is in effect a general denial of the allegations of the complaint.

When the cause came on for trial before the Superior Court defendants objected upon the ground that the court was without jurisdiction to hear and determine it, and the trial court sustained the objection so made and dismissed the action. Thereupon petitioner filed her petition in this court for a writ of mandate to compel the Superior Court to exercise jurisdiction over said cause and proceed to hear and determine said cause upon its merits. The questions of law involved in this proceeding are raised by demurrer to the petition. “It is a definitely settled rule that where a court has jurisdiction of a cause it should not be permitted by an arbitrary or erroneous order to divest itself of jurisdiction, but it should be compelled to proceed with the case to judgment.

Mandamus

is an appropriate remedy.

(Golden Gate Tile Co.

v.

Superior Court,

159 Cal. 474 [114 Pac. 978].) ”

(Pacific States Corp.

v.