Kaye v. Superior Court

California Court of Appeal

Kaye v. Superior Court

164 P.2d 912, 164 P. 912, 33 Cal. App. 269, 1917 Cal. App. LEXIS 323

CourtCalifornia Court of Appeal

DecidedMarch 21, 1917

DocketCiv. No. 2259.

StatusPublished

Cited by3 cases

This text of 164 P.2d 912 (Kaye v. Superior Court) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kaye v. Superior Court, 164 P.2d 912, 164 P. 912, 33 Cal. App. 269, 1917 Cal. App. LEXIS 323 (Cal. Ct. App. 1917).

Pincite

Opinion

THE COURT.—Prohibition.

One Newell obtained a judgment in the justice’s court against Katze et al., from which defendants appealed to the superior court, where the ease was submitted for decision upon an agreed statement of the facts involved. The court adopted the agreed statement as its findings, and gave judgment thereon for plaintiff. Thereafter defendants, pursuant to notice and upon statutory grounds, moved the court for a new trial, which motion for new trial so made by defendants the plaintiff moved to dismiss. The court refused to grant the motion so made by plaintiff to dismiss, and continued to a later date the hearing of defendants’ motion for a new trial. Plaintiff then applied to this court for an alternative writ of prohibition directed to the respondent, requiring it to desist from further proceedings in the matter. The application was based upon the ground that the court was without jurisdiction to entertain a motion for new trial of a case on appeal from a justice’s court, where the trial was had upon a stipulation of the facts *270 involved. The writ was granted on November 25, 1916, and by the clerk issued in form prepared and submitted by petitioners’ attorneys, requiring respondent to desist from further proceedings or ruling upon defendants’ motion for new trial then pending before it, until the 18th of December, - 1916, instead of until the further order of the court, as required by section 1104 of the Code of Civil Procedure. It appears from the return that after the expiration of said time, to wit, on December 27, 1916, the court heard the motion for new trial and granted the same. In so doing, since the command of the writ was merely to desist from any ruling until December 18th, there was no violation of the order. It thus appears that the act, the performance of which it was sought to restrain, having been done, and conceding the court acted in excess of its jurisdiction, as to which, upon the authority of Gregory v. Gregory, 102 Cal. 50, [36 Pac. 364] , Quist v. Sandman, 154 Cal. 748, [99 Pac. 204], and Abbey Land etc. Co. v. San Mateo, 167 Cal. 434, [Ann. Cas. 1915C, 804, 52 L. R. A. (N. S.) 408, 139 Pac. 1068], we entertain no doubt; nevertheless no purpose could be served by making the writ peremptory. Indeed, as it now appears, the record presents a moot question; and the proceeding, without prejudice to the right of the petitioners to apply for such other and further writ in the premises as they may deem advisable, is dismissed.

Free access — add to your briefcase to read the full text and ask questions with AI

THE COURT.—Prohibition.

One Newell obtained a judgment in the justice’s court against Katze et al., from which defendants appealed to the superior court, where the ease was submitted for decision upon an agreed statement of the facts involved. The court adopted the agreed statement as its findings, and gave judgment thereon for plaintiff. Thereafter defendants, pursuant to notice and upon statutory grounds, moved the court for a new trial, which motion for new trial so made by defendants the plaintiff moved to dismiss. The court refused to grant the motion so made by plaintiff to dismiss, and continued to a later date the hearing of defendants’ motion for a new trial. Plaintiff then applied to this court for an alternative writ of prohibition directed to the respondent, requiring it to desist from further proceedings in the matter. The application was based upon the ground that the court was without jurisdiction to entertain a motion for new trial of a case on appeal from a justice’s court, where the trial was had upon a stipulation of the facts *270 involved. The writ was granted on November 25, 1916, and by the clerk issued in form prepared and submitted by petitioners’ attorneys, requiring respondent to desist from further proceedings or ruling upon defendants’ motion for new trial then pending before it, until the 18th of December, - 1916, instead of until the further order of the court, as required by section 1104 of the Code of Civil Procedure. It appears from the return that after the expiration of said time, to wit, on December 27, 1916, the court heard the motion for new trial and granted the same. In so doing, since the command of the writ was merely to desist from any ruling until December 18th, there was no violation of the order. It thus appears that the act, the performance of which it was sought to restrain, having been done, and conceding the court acted in excess of its jurisdiction, as to which, upon the authority of Gregory v. Gregory, 102 Cal. 50, [36 Pac. 364] , Quist v. Sandman, 154 Cal. 748, [99 Pac. 204], and Abbey Land etc. Co. v. San Mateo, 167 Cal. 434, [Ann. Cas. 1915C, 804, 52 L. R. A. (N. S.) 408, 139 Pac. 1068], we entertain no doubt; nevertheless no purpose could be served by making the writ peremptory. Indeed, as it now appears, the record presents a moot question; and the proceeding, without prejudice to the right of the petitioners to apply for such other and further writ in the premises as they may deem advisable, is dismissed.

Cite This Page — Counsel Stack

Bluebook (online)

164 P.2d 912, 164 P. 912, 33 Cal. App. 269, 1917 Cal. App. LEXIS 323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaye-v-superior-court-calctapp-1917.

Opinion

Related

Cite This Page — Counsel Stack