White v. Superior Court
Before: Fleet
Synopsis
Divorce—Alimony—Sale of Husband’s Property by Receiver—Ap« peal—Certiorari.—An order after judgment directing the sale by a receiver of property of the husband for the purpose of satisfying a judgment for alimony is appealable, and, regardless of whether there is an excess of the jurisdiction of the court in making it, the remedy by appeal is conclusive of the right to review it upon certiorari.
Id.—Prohibition—Appeal—Stay of Proceedings.—The writ of prohibition lies only where there has been an excess of jurisdiction, and there is not a plain, speedy, and adequate remedy in the ordinary course of law; and where an appeal affords a complete and adequate remedy, and the same ends may be accomplished by it, and a stay of proceedings thereupon, as by writ of prohibition, although perhaps not in so expeditious a manner, the party is not entitled to the writ, but must resort to his remedy by appeal, although a question of jurisdiction may be involved.
Id.—Appeal from Order Directing Receiver to Sell—Stay of Proceedings.—By an appeal from an order directing a receiver to sell the property of the husband to satisfy a decree for alimony, the hand of the superior court and that of its instrument, the receiver, may be effectually stayed, pending the determination of the appeal, by giving the proper bond, and there can be no necessity in such a case for prohibition.
Van Fleet, J. This is an original proceeding, which in the matter of remedies sought is somewhat multifarious, and consequently not susceptible of single definition.
Petitioner asks for certiorari to review, and prohibition to stop, the execution of a certain order of the re[56]spondent court complained of. From the petition and the return thereto it appears that, in an action for divorce pending in said superior court, in which the petitioner, George E. White, is plaintiff, and one Frankie White,- defendant, a decree of divorce was entered in May, 1889, and the question of the property rights of the parties referred to a referee for report thereon. Subsequently, in June, 1894, a receiver was appointed in said cause to take charge and possession of the property, real and personal, of the plaintiff therein, the petitioner here, and hold, manage, and control the same, under the supervision of said superior court, until further order in the premises. Oh February 9, 1895, the report of the referee having been received, said court made and entered its final decree in said action, awarding to the defendant therein, Frankie White, the sum of one hundred thousand dollars as permanent and final alimony, allowances, etc., and directing that the receiver theretofore appointed be continued as such, and take all necessary and.proper measures to enforce and secure the payment and satisfaction of the amount awarded by said decree, and certain unpaid monthly allowances due, and after such payment to hold any residue of said property subject to the further order of the court.
Thereafter, on the nineteenth day of April, 1895, said court, on application of the defendant in said cause, and against the objections of the petitioner, made an order therein, requiring and directing said receiver to proceed as such and sell the property of the petitioner, so far as should be necessary, in satisfaction of said judgment. It is this last-mentioned order which is made the subject of attack herein. Petitioner alleges that the making of said order directing a sale by said receiver of petitioner’s property, consisting in large part of lands in different counties of the state, for the satisfaction of a mere money judgment, such as it is contended the final decree in said cause in effect is, is beyond the jurisdiction of said superior court, and contrary to the course of the law, for various alleged reasons not necessary to [57]
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