ANGELLOTTI, C. J., Dissenting.
I dissent.
The facts are fairly stated in the prevailing opinion.
The real question presented is whether the provision of the judgment enjoining the plaintiffs from making any claim to the property involved in the action is in force and operative pending the appeal taken from the whole judgment, which judgment, by reason of such appeal, is not as yet final. The claim of defendants that it is so operative and in force, notwithstanding the appeal, is based upon the settled doctrine of
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this court that an appeal does not stay the force of a prohibitory injunction. The question whether this is the situation when the prohibitory order is simply a part, as here, of an ordinary judgment quieting title in an action brought under section 738 of the Code of Civil Procedure, to determine adverse claims to real estate, has never been squarely decided by this court. It was expressly eliminated from consideration in
Lake
v.
Superior Court,
165 Cal. 182, 188 [131 Pac. 371]. There is no suggestion that there was any foundation in the pleadings for injunctive relief other than the allegations of title. The character of an injunctive portion of a judgment in such a case has been referred to in several eases. The propriety at all of such an injunctive provision in a decree in an action to quiet title has been questioned, but it is settled that it is entirely proper for the reasons hereinafter referred to. In
Brooks
v.
Calderwood,
34 Cal. 563, 566, it was said: “The very object of the suit was to determine whether the defendants
had any just claim or title to the premises as against plaintiff,
and settle the question forever. The court has determined that they have none, and we see no reason why it may not make its judgment effectual by restraining the defendants from further setting up
a false claim. It has been judicially determined that defendants have no just claim, estate, or interest in
a portion of the land, and as to that portion there is no reason why the plaintiff should be permitted to be further harassed by them.” The italics are ours. Again, in
Kittle
v.
Bellegarde,
86 Cal. 556, [25 Pac. 55], in reply to the objection that in such an action an injunctive provision against executing deeds in pursuance of a certificate of sale was inappropriate and unwarranted, it was said: “The injunction was merely ancillary to the principal relief, and was proper, if necessary to
make that relief effect
ual,Again the italics are ours. And in
Lake
v.
Superior Court,
165 Cal. 182, at page 191, [131 Pac. 371], it was substantially said that the injunctive provision to enforce the rights adjudicated in the judgment was both permissible and proper.
The idea clearly appears to be that in such actions the real and substantial object is to determine the title, and the injunctive provision is designed solely to enforce the rights
determined by the judgment as to title,
and can have no other effect. Its whole basis is the judgment in regard to title, it
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must stand or fall with that judgment, and it would seem necessarily that its effect must be suspended by anything that suspends the effect of the judgment as to title. To enforce it by contempt proceedings pending an appeal from that judgment is in effect to enforce the provisions of the judgment as to title while the same remains absolutely ineffectual by reason of the appeal. In view of the pending appeal we have no final adjudication as to title as yet. The matter is still
sub judioe.
I am unable to see that the case of
Foster
v.
Superior
Court, 115 Cal. 279, [47 Pac. 58], is not absolutely in point in principle. There was a contest of an election for directors of a corporation between two persons. It was determined by the superior court that Smith was elected, and the judgment so declaring also enjoined the other directors from interfering with Smith in the exercise of his office as such director. An appeal having been taken from the judgment, Foster, one of the other directors, excluded Smith from participation in a meeting of the directors, and was adjudged guilty of contempt for so doing. On
certiorari
proceedings, this court said: ‘ ‘ The action of the superior court in the present case was a proceeding ‘upon the judgment’ from which the appeal had been taken, and was instituted. for the purpose of enforcing a compliance therewith. . . . The injunction, in the judgment, against the interference with Smith’s right to act as a director was but ancillary to the judgment determining that he had such right, and was merely incidental thereto. ... As that portion of the judgment declaring that Smith was elected was suspended by the appeal, the injunctive portion of the judgment, being merely incidental thereto, was also suspended, and the power of the court to enforce any portion of its judgment by inflicting punishment for its violation was stayed. An enforcement of this portion of the judgment would operate tó carry the decree into effect.” It is true that it was also said that the injunction was, in effect, mandatory, but there can be no question as to the views of the court to the effect that it was suspended by the appeal from the judgment regardless of whether it was mandatory or prohibitory.
My conclusion in no degree infringes the rule that an appeal does not stay the force of a prohibitory injunction. What I have said shows the distinction between the cases in which it has been so held, and such cases as this. The only prohibí
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tory relief here given is that deemed essential to make the
decree as to title
when it shall have become final broad enough to accomplish its object and fully protect those in whose favor it was given. It rests on no other foundation than the
decree as to title,
and is an inseparable part and incident of that decree.
To my mind it is entirely clear that enforcement of the provision of the judgment enjoining the plaintiffs from making any claim to the property involved in the action is stayed by the appeal from the judgment, and that plaintiffs are entitled to a writ of
supersedeas
as prayed. Were it not for the fact that so many of my learned associates have come to a different conclusion, I would say that this is so clear as not to admit of question.
Lorigan, J., concurred..
Rehearing denied.