Wissman v. Cabaniss

California Court of Appeal

Wissman v. Cabaniss

168 P. 150, 34 Cal. App. 487, 1917 Cal. App. LEXIS 60

CourtCalifornia Court of Appeal

DecidedAugust 27, 1917

DocketNo. 2217.

StatusPublished

Cited by8 cases

This text of 168 P. 150 (Wissman v. Cabaniss) 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

Wissman v. Cabaniss, 168 P. 150, 34 Cal. App. 487, 1917 Cal. App. LEXIS 60 (Cal. Ct. App. 1917).

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Opinion

THE COURT.

Petition for writ of mandate.

The court is of the opinion that this writ should issue. As to the effect of the decree in the former proceeding, we are of the opinion that it was entirely ineffectual to decide any property rights between the husband and wife by reason of the fact that the wife was not personally served with process. In that proceeding the court was without jurisdiction to determine the question of property rights in the absence of personal service. That being so, the wife had a right to bring the action out of which this proceeding arose, and she had *488 the statutory right in preparing for the trial of that action to cause the deposition of the defendant to be taken. At the taking of that deposition she asked questions which were pertinent to the issues raised in the case and to be tried therein; she had a right to have those questions answered, and in ease the witness refused to answer she had a right to the direction of the superior court that the question should be answered. A refusal on the part of the superior court to exercise its power in aid of that right amounted to a denial of justice to her to the extent that it deprived her" of the statutory right which she had to prepare for trial by the taking of this deposition. The court could not oust itself of jurisdiction to direct the witness to answer a question which was pertinent to the issues raised by the pleadings by holding—as we think clearly against the law—that in the former action the question of property rights had been determined. That matter seems to us so clear that we are of the opinion that the court in this present matter had no discretion to refuse the order which the plaintiff sought to compel the witness to answer, and that its refusal amounted to the ousting of itself from jurisdiction in the matter, and hence was the proper subject of a writ of mandate. The writ will issue as prayed for.

A petition for a rehearing of this cause was denied by the district court of appeal on September 26,1917, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 25, 1917.

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THE COURT.

Petition for writ of mandate.

The court is of the opinion that this writ should issue. As to the effect of the decree in the former proceeding, we are of the opinion that it was entirely ineffectual to decide any property rights between the husband and wife by reason of the fact that the wife was not personally served with process. In that proceeding the court was without jurisdiction to determine the question of property rights in the absence of personal service. That being so, the wife had a right to bring the action out of which this proceeding arose, and she had *488 the statutory right in preparing for the trial of that action to cause the deposition of the defendant to be taken. At the taking of that deposition she asked questions which were pertinent to the issues raised in the case and to be tried therein; she had a right to have those questions answered, and in ease the witness refused to answer she had a right to the direction of the superior court that the question should be answered. A refusal on the part of the superior court to exercise its power in aid of that right amounted to a denial of justice to her to the extent that it deprived her" of the statutory right which she had to prepare for trial by the taking of this deposition. The court could not oust itself of jurisdiction to direct the witness to answer a question which was pertinent to the issues raised by the pleadings by holding—as we think clearly against the law—that in the former action the question of property rights had been determined. That matter seems to us so clear that we are of the opinion that the court in this present matter had no discretion to refuse the order which the plaintiff sought to compel the witness to answer, and that its refusal amounted to the ousting of itself from jurisdiction in the matter, and hence was the proper subject of a writ of mandate. The writ will issue as prayed for.

A petition for a rehearing of this cause was denied by the district court of appeal on September 26,1917, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 25, 1917.

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Bluebook (online)

168 P. 150, 34 Cal. App. 487, 1917 Cal. App. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wissman-v-cabaniss-calctapp-1917.

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