Goble v. Appellate Department of Superior Court

WORKS, P. J.

The petition for the writ of mandate is demurred to on the ground that no cause for relief is stated against respondent judges. The demurrer must be sustained. This point has been decided with tiresome frequency. (See, for instance,

Alexander

v.

Superior Court,

91 Cal. App. 312 [266 Pac. 993].)

Demurrer is also interposed on the grounds, in effect, that the Appellate Department of the Superior Court is not a proper party respondent and that the proper party is the superior court. This point we shall not determine. We shall assume, for the purpose of the decision only, that the proceeding has been properly instituted against the Appellate Department.

The Appellate Department, on the day preceding the one on which its

remittitur

ordinarily would have gone down to the municipal court in a certain case, entered an order staying the issuance of the

remittitur.

This order was made without notice. The writ of mandate is asked for the purpose of requiring the

remittitur

to be sent down, but solely upon the ground that the order staying it was made without notice, it being admitted that respondent has power to stay the issuance of

remittitur

upon notice. Whether notice is required as' a prerequisite to such a stay order we shall also not decide.

After the order was made, petitioner, upon due notice, moved respondent that it be vacated, a hearing of the motion was had and it was denied. This circumstance cured the lack of precedent notice, if there was legally such a lack

(Bryan

v.

Stidger,

17 Cal. 270;

Doehla

v.

Phillips,