More v. Superior Court

Ross, J. — The writ of prohibition only goes to arrest the proceedings of a tribunal, corporation, board, or person when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person. Unless, therefore, it can be held that the Superior Court of the city and county of San Francisco has no jurisdiction of the action entitled Welch v. Huse, it is plain that the writ cannot go; for this writ is not the appropriate one to procure the annullment of proceedings already had.

It is contended that the Superior Court of the city and county of San Francisco has not jurisdiction of the action of Welch v. Huse because of that provision of the present Constitution declaring that all actions for the recovery of the possession of real estate shall be commenced in the county in which the real estate or some part thereof affected by such action or actions is situated. But in no sense is the action entitled Welch v. Huse one “ for the recovery of the possession of real estate.” It is an action brought by certain cestuis que tmst to procure the removal of the trustees, the appointment of other trustees in their stead, and the appointment of a receiver to take, hold, and protect the property pending the action. Such an action is and always has been one of exclusively equitable jurisdiction, of which by section 5 of article vi. of the Constitution the Superior Courts are given original jurisdiction.

Writ denied and proceedings dismissed.

Morrison, C. J., Sharpstein, J., Myriok, J., McKinstry, J., and Thornton. J., concurred.