Duncan v. Superior Court

STURTEVANT, J.

This is an application for a writ of

mandamus,

directing the defendant to hear and determine a petition asking it to determine the title to an automobile on which the plaintiff had caused a writ of execution to be levied. An order to show cause was issued by this court, the defendant answered and the application was submitted on the pleadings.

In her petition for a writ, the plaintiff alleged that heretofore she obtained a judgment against P. B. Cross and that the judgment has become final; that she caused a writ of execution to issue and to be levied on an automobile; that on October 1, 1929, C. E. Ryan filed with the sheriff a third-party claim; that on October 2, 1929, the sheriff notified this plaintiff that said claim had been filed; that on October 15, 1929, this plaintiff filed a verified petition to have the title to the automobile determined; that the court fixed the date of the hearing on said petition for October 28, 1929, and issued an order to show cause returnable at said time. The defendant’s answer admitted those allegations, but, continuing, it alleged that on November 4, 1929, the plaintiff filed an amended petition which was set for “Nov. 13, 1929, and that upon the failure of petitioner to appear at said time, the hearing of said amended petition was continued to Nov. 19, 1929, at which time the petition came on for hearing and the said C. B. Ryan objected to the hearing of said petition and moved the said court to dismiss the petition on the ground that the Superior Court was without jurisdiction ; . . . ” and that on December 31,1929, the motion was granted on that ground.

On the argument the defendant called attention to the fact that a continuance was had from November 13, 1929, to November 19, 1929, and that the plaintiff did not appear on November 13, 1929. He also argued that “good cause” was not shown for that continuance and therefore the order made December 31, 1929, dismissing the petition was not improper.

The order putting the hearing over to November 19, 1929, without any showing as to good cause was apparently

[220]

in violation of the terms of the statute, but was not in ex- • eess of jurisdiction.