Lickley v. County Board of Education

California Court of Appeal Jun 15, 1923 No. Civ. No. 4334.Published

Before: Conrey

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Holding. The court denied the application for a writ of supersedeas, holding that such a writ cannot be used to restrain proceedings that are not in execution of the judgment from which the appeal is taken.

Issues

Whether a writ of supersedeas may be issued to stay administrative proceedings pending an appeal from a judgment denying a writ of prohibition.

Disposition. denied

Quotations verified verbatim against the opinion

“The general rule, therefore, is that supersedeas will not issue where the judgment does not command or permit any act to be done, or where it is not of a nature to be actively and affirmatively enforced by execution or otherwise.”

“the decisions in this state have clearly and consistently held that the only function of that writ is to restrain proceedings upon the judgment from which the appeal has been taken.”

CONREY, P. J.

The plaintiff applied to the superior court for a writ of prohibition to restrain and prohibit the defendants from hearing or taking any further proceedings in connection with the hearing of certain charges filed with the county board of education of the county of Los Angeles against the plaintiff. In the petition for prohibition it was alleged that three certain members of the board were disqualified from hearing said charges by reason of bias, prejudice, and hatred toward the petitioner, and that said members prior to the hearing have determined out of such personal bias, hatred, and prejudice, to revoke the certificates of the petitioner as a teacher, regardless of the sufficiency or insufficiency of the charges made against him or of any testimony in support thereof.

In their return to the writ respondents denied that said members have any prejudice against the petitioner, and denied that they have for said reasons or at all determined what action will follow the hearing of said charges.

Treating the return as constituting a demurrer as well as an answer, the court entered an order that the demurrer be sustained. Thereupon, the court entered judgment wherein it was recited that it appeared to the court that the petition does not state facts sufficient to warrant the relief demanded, and ordered that the petition be denied. From this judgment the plaintiff appealed, and the transcript on appeal is now on file in this court.

Appellant has now made application to this court for a writ of

supersedeas.

It is alleged that respondents are threatening to, and unless restrained from so doing will, proceed with the hearing upon said charges, and “that unless said proceedings before said board are stayed pending the disposition of this appeal, the relief sought by petitioner on this appeal will be of no avail.” The single question presented at the hearing of this application relates to the power of this court by writ of

supersedeas

to prevent

[529]

respondents from proceeding with the hearing , of said charges against appellant during the time of pendency of the appeal.

Lickley v. County Board of Education

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CONREY, P. J.

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