Gubin v. Superior Court

CONREY, P. J.

The petitioners have made application to this court for a writ of prohibition to prevent respondents

[470]

from enforcing an order which requires the petitioners to open, for inspection of their contents, certain safety deposit boxes. The proceedings in question have occurred in an action wherein Rhonie Gubin seeks to obtain a divorce from the defendant Frank Gubin. Oscar Gubin and Bertha Gubin are co-defendants of Frank Gubin in that action. Oscar is a brother of Frank and Oscar’s wife Bertha is a sister of the plaintiff Rhonie Gubin. It is alleged in the complaint that a large amount of community property of plaintiff and her husband is held in the names of Oscar and Bertha Gubin, who are made defendants in order to obtain a complete adjudication of the plaintiff’s alleged rights in said community property.

In said divorce action an order was made on August 9, 1929, requiring defendant Frank Gubin to make certain payments as alimony and attorney fees. The order was made pursuant to a stipulation. Thereafter the defendants, pursuant to notice given, moved the court to vacate said order of August 9th on the ground that the stipulation had been obtained by misrepresentation, fraud and deceit. The court having denied the motion, the defendants appealed to the Supreme Court and filed a stay bond in an amount fixed by the Superior Court. Thereafter the defendant Frank Gubin was ordered to appear and show cause why he should not be punished for contempt for not having paid the $250 per month alimony provided in the order of August 9th. In so far as the present proceeding is directed to the alleged right of respondents to enforce the order from which an appeal has been taken we shall assume that no writ of prohibition is necessary, since we are informed that in connection with the pending appeal to the Supreme Court that court has under consideration an application for

supersedeas,

and in connection therewith has granted a temporary stay of all proceedings in the matter of enforcement of said order of August 9th.

But there is another proceeding not included in said appeal and not included in said order of the Supreme Court. On October 3d plaintiff obtained from respondent court an order upon the defendant Frank Gubin to appear and show cause why he should not pay attorney fees, court costs and alimony pending appeal from order of August 9th. Upon the hearing of this matter and for the purpose