Yolo Water & Power Co. v. Superior Court

THE COURT.

This is an application for the transfer of a proceeding in prohibition, now pending in the district court of appeal of the third appellate district, to this court for hearing- and determination. The district court of appeal made an order to show cause why such a writ should not be issued, in response to which the respondents interposed a demurrer. After argument on this demurrer the -district court of appeal, on August 8, 1919, made an order overruling the demurrer and directing an alternative writ of prohibition to issue. This order was accompanied by an opinion. This being the situation with reference to the proceeding in the district court of appeal, and no final judgment having been given by that court, this application is made to this court for an immediate transfer and an immediate hearing herein, on the ground that there is such an emergency, due to the peculiar facts of the case, as requires an immediate decision by the highest court of the state.

[1]

Conceding the existence of the power of this court to order this transfer prior to final judgment by the district court of appeal, we do not feel that we are warranted in exercising that power in the present situation of the proceeding.

[2]

In denying the application for transfer we deem it proper to say that in view of our decisions, neither the order overruling the demurrer made by the district court of appeal nor the views stated by that court as its reasons for making such order constitute the law of the case in so far as further proceedings in said court are concerned, or upon any petition for a hearing in this court that may be filed, after said proceeding is finally determined by such district court of appeal.

[35]

Furthermore, denial of this application is not to be taken as indicating our assent to the conclusion reached by the district court of appeal on demurrer or the views expressed in the opinion of said court filed with said order.

The application for transfer is denied.

All the Justices concurred, except Wilbur, J., who was absent.