Christie v. Superior Court

THE COURT.

The above-entitled matters are, first, a petition for writ of

certiorari,

and second, an appeal by plaintiff from a judgment of the Superior Court of San

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Francisco. Both deal with the same controversy, which arose as follows: In a prior proceeding, Alice Stafford sued Catherine Christie and obtained judgment by default, in the sum of $1,020.98. Catherine Christie then brought an action in equity to set aside the judgment on the ground that summons was never served upon her, and in that action she was granted a temporary injunction against the enforcement of the said judgment by execution levied against her property. Upon the trial Judge Conlan gave judgment against the plaintiff, finding that she had been properly served, and that a meritorious ease had existed in favor of Alice Stafford in the first suit. This judgment, entered November 12, 1931, dissolved the temporary injunction. To prevent the sale of her property under the execution previously levied, Catherine Christie obtained an order from Judge Conlan continuing in force the temporary injunction “until the further order” of the court. In January, 1932, Alice Stafford moved to set aside this order on the ground that it was beyond the jurisdiction of the court, and on June 3, 1932, Judge Cabaniss granted the motion. Thereupon Catherine Christie petitioned for a writ of

certiorari,

contending that Judge Cabaniss had no power to vacate Judge Conlan’s order. Prior to this time, on January 15, 1932, she gave notice of appeal from the judgment. A writ of

certiorari

was granted and the matter heard in this court. Thereafter the briefs on appeal were filed and both matters are now before us for determination. Since the decision on the appeal will finally adjudicate all the issues, it is unnecessary to give consideration to the propriety of the remedy of

certiorari,

although it may be observed that the statute is explicit in its provision that

certiorari