River Farms Co. v. Superior Court

THE COURT.

A petition was filed in this court for a writ of prohibition to prevent the respondent superior court from enforcing a temporary injunction. An alternative writ issued, and the matter was presented on the petition and a demurrer thereto.

On December 9, 1932, Hiram W. Johnson, Jr., individually and as administrator of the estate of Edgar Laurence Dow, deceased, and Minnie L. Johnson (who will be hereafter referred to as the respondents), commenced an action in the Superior Court in and for the City and County of San Francisco to enjoin petitioners above named from proceeding with the sale of shares of stock of petitioner corporation by reason of the nonpayment of an assessment theretofore levied thereon. Thereafter on the same date respondents obtained without notice or the filing of a bond a restraining order based upon the allegations of the complaint, and therewith an order directing petitioners to show cause before respondent court on December 19, 1932, why a temporary injunction should not issue restraining the threatened sale. On December 17, 1932, respondents’ points and authorities and petitioners’ affidavits, together with their points and authorities, were duly served. On December 19, 1932, the date on which the order to show cause was made returnable, the respective parties to the action appeared in the department of respondent court in which the matter was pending and announced that they were ready to proceed. The trial judge announced that he would be unable to hear the matter on that day and that the same would be continued until a later date. Petitioners objected

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to a continuance and requested that the matter be transferred to another department of the same court for hearing on the date fixed in the order to show cause. A transfer was refused as was likewise a request that respondents be required to file a bond pending the hearing of the order to show cause. The hearing was thereupon continued over objection to December 21, 1932.

It is not alleged that respondents were not ready to proceed or had failed to comply with the provisions of section 527 of the Code of Civil Procedure, or that they requested a continuance.

On December 21, 1932, petitioners moved the court to dissolve the restraining order, and objected to the hearing of the order to show cause on the ground that the continuance was in excess of the court’s jurisdiction, and that by reason thereof the court had lost jurisdiction to proceed. The motion was denied and the objection overruled. The court proceeded to hear the matter, and on December 28, 1932, made its order for a temporary injunction. Following the filing of the required bond the temporary injunction was issued.