Porter v. Superior Court

WORKS, J.

Petitioner in this proceeding commenced in respondent court a certain action in which, in addition to a prayer for other relief, he asked for a temporary injunction. Upon the filing of the complaint an order to show cause was issued, and thereafter, upon notice and after a hearing at which all parties to the action were present, the injunction was ordered on the giving of an undertaking in the sum of twenty thousand dollar's. The undertaking was given, was approved by respondent court and the injunction issued. Thereafter the cause proceeded to judgment against the plaintiff, petitioner here, but it was by respondent court adjudged “that the temporary injunction heretofore ordered by this Court ... be and remain in full force and effect pending ' the appeal from this judgment and a final determination of said appeal." After the filing of findings and judgment in ('the action, and after the plaintiff had perfected an appeal

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from the judgment, which appeal is still pending, the defendants gave notice of motion for an order requiring the plaintiff, petitioner here, “to execute and furnish an undertaking in the penal sum of fifty thousand dollars as a condition for the keeping in force" of the temporary injunction pending an appeal from the judgment and until the final

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disposition of the appeal, and further requiring “that if said plaintiff shall fail, within the time fixed by said court, to furnish said undertaking, that said temporary injunction be vacated, annulled, and set aside.” The cause thereafter came on to be heard pursuant to the notice of motion and the plaintiff, petitioner here, objected that respondent court had no jurisdiction to entertain the motion contemplated by the notice. The objection was overruled and respondent court was about to proceed with a hearing under the notice when petitioner filed his petition in this proceeding asking that the hearing be prevented. Thereupon we issued an alternative writ of prohibition. Respondents have made no return to the writ. j

Petitioner contends that respondent was divested of, jurisdiction to increase the amount of the undertaking from twenty thousand dollars to fifty thousand dollars by the^ perfecting of the appeal from the judgment. That this; contention is unsound appears plainly from the opinion of j the supreme court in a late ease. There the court said, afterj referring to earlier cases, the italics in the quotation being those of the opinion: “It is clear that the perfection of an appeal divests the superior court of jurisdiction as to all matters