People ex rel. Scannell v. Whitney

47 Cal. 584

Opinion

By the Court:

Conceding that the fact that the petitioner had taken an appeal to this Court from the order of the Court below, denying his motion to change the place of trial, entitled him to a continuance of the general cause in the Court below while such appeal was pending in this Court, under section 946 of the Code of Civil Procedure, and within the rule laid down in Pierson v. McCahill, 23 Cal. 127, it does not follow that the Court below has, by reason of the pendency of such appeal, lost jurisdiction of the case, or that a trial of the case pending the appeal would be a proceeding without or in excess of the jurisdiction of the Court below, in the sense of section 1,102 of the Code of Civil Procedure, so as to authorize us to issue a writ of prohibition to that Court. It might amount to an error for which the judgment would be reversed here, as was done in Pierson v. McCahill, supra, if that ease is to be followed upon that point (a question which we will not now consider), but no case called to our attention would characterize the action of the Court below, in trying the cause under such circumstances, as an excess of jurisdiction in the absolute sense.

The application for the writ of prohibition is therefore denied.