Day v. Superior Court

McKee, J.: In this case the petitioner asks for a writ of prohibition to forbid the defendant—the Superior Court of the City and County of San Francisco—from interfering with the interest of one Simon Peckerman in some personal property, which has been attached in a suit pending in favor of the petitioner against the said Peckerman and one Jeremiah James.

If the Superior Court is entertaining a proceeding of which it has no jurisdiction, or if, having jurisdiction, it is assuming to exercise an unauthorized power over property not subject to its jurisdiction, or which is within the jurisdiction of another tribunal, the petitioner is entitled to the writ which he asks, otherwise he is not. The question, therefore, presented to us relates simply to jurisdiction. (Appo v. The People, 20 N. Y. 531; People v. Nichols, 79 id. 582; Maurer v. Mitchell, 53 Cal. 289; People ex rel. Brundage v. Sup. of Kern Co., 47 id. 81.)

The facts out of which the question arises are these: In the year 1872, Simon Peckerman and Jeremiah James were copartners, engaged in carrying on business by the firm name of Peckerman & James. As such they became indebted to various persons, including the petitioner, and, being unable to pay their debts in the due course of business, they, on the twenty-ninth of July, 1872, voluntarily filed their petition, in the United States District Court for the District of California, to be declared bankrupts, individually and as partners; and, on that day, they were so adjudicated. But they never received their certificates of discharge; and, pending the proceedings, the petitioner, as one of their creditors, procured, on the sixth of June, 1882, from the bankruptcy court, an order [491]granting him permission to enforce his claims to final judgment against the debtors.

Under that order the petitioner, on June 16, 1882, commenced a suit against Peckerman & James to recover judgment against them for the amount of his demands; and in that suit he caused to be issued an attachment, which was placed in the hands of the Sheriff of Merced county, in this State; and the Sheriff, by virtue of the writ, on June 13,1882, seized a stock of clothing, dry goods and general merchandise, which then belonged to the said Peckerman and one Abraham Rosenthal, both of whom were, at that time, copartners and carrying on business by the firm name of Rosenthal & Co. On the fifteenth of June, 1882,—two days after the levy of the attachment upon their stock in trade, Rosenthal & Co., being insolvent, filed their petition in the Superior Court of the City and County of San Francisco, accompanied with the schedule and inventory required by the State statute of insolvency, to be discharged from their debts as insolvent debtors. Upon filing the petition the Court, by an order regularly entered, as provided by the statute, directed the Sheriff of the City and County of San Francisco to take possession of all the property of the insolvents; required all the creditors of the firm to appear on July 20, 1882', to prove their debts and choose an assignee, and stayed all suits and proceedings, including the attachment suit of the petitioner, commenced against the insolvent debtors.