Wright v. Superior Court

73 P. 145, 139 Cal. 469, 1903 Cal. LEXIS 845

• Court: California Supreme Court
• Decided: June 26, 1903
• Docket: S.F. No. 3393.
• Status: Published

Opinions

VAN DYKE, J.

The petition for the writ in this case states that on the 28th of March, 1902, Myra E. Wright, one of the petitioners herein, commenced an action as plaintiff against the Jersey Island Packing Company, a California corporation, for the purpose of recovering eighty-five thousand dollars advanced by her to the said corporation, and which it had failed and refused to repay; that the defendant in said action being served, appeared and answered therein, denying said indebtedness, and joining issue with the facts alleged in the complaint; that thereafter, by an order of said superior court, said action was set for trial for Monday, November 17, 1892, at the hour of ten o’clock; that when said cause was called for trial on that day, the attorneys for the respective parties plaintiff and defendant announced themselves ready for trial, and thereupon, without any objection upon the part of the defendant, the Jersey. Island Packing Company, the judge of said department five, in which the cause was set for trial, directed the clerk of said court to call a jury for the trial thereof, and the clerk thereupon drew from the trial jury-box of said department twelve jurors, who answered to their names and took their seats in the jury-box. Immediately thereafter one of the attorneys for said defendant served upon the petitioners herein, William H. Wright and Walter H. Linforth, a copy of the complaint and summons, and the injunction in the action brought by said Jersey Island Packing Company in Santa Clara County against said plaintiffs in said action, then on trial in the superior court of San Francisco,—to wit, Myra E. Wright and William H. Wright,—for the purpose, among other things, of restraining said Myra E. Wright and her counsel from proceeding with the trial of said action for recovery of the said eighty-five thousand dollars- against the said Jersey Island Packing Company; that none of the petitioners herein or their attorneys had any knowledge or notice of the commencement of said action or issuance of the injunction' therein until the service of the papers as aforesaid in department five of the superior court of the city and county of San Francisco ; that the office and principal place of business of. the said Jersey Island Packing Company is, and always has been, the city and county of San Francisco, and that the residence of said Myra É. Wright and William H. Wright has been for more than a year last past continuously, and is still, in the said city and county of San Francisco, which fact was well known to said Jersey Island Packing Company and to its attorneys at the time of the commencement of the action so brought in said superior court of Santa Clara County. The said action brought in Santa Clara County by the Jersey Island Packing Company against the petitioners Myra E. Wright and William H. Wright was in the nature of a bill of discovery to obtain the testimony of the said Myra E. Wright, alleging that the said testimony to be obtained was material and necessary for the defense in the action in the superior court of the city and county of San Francisco then pending. It is further alleged that the said William H. Wright and Myra E. Wright appeared in the said action brought in the county of Santa Clara, served and filed their demurrer therein, and at the same time served upon the attorneys of the said Jersey Island Packing Company their notice of motion for a change of the place of trial from said superior court to the superior court of the city and county of San Francisco, and at the same time served and filed their demand for the said change of the place of trial, and also a proper affidavit setting forth the residence both of the plaintiff and defendants in said action to be in the city and county of San Francisco; that the judge of said superior court of Santa Clara County, upon the affidavit of one of the attorneys for the said Jersey Island Packing Company, made an order directing the petitioners to appear before him at his courtroom, in the city of San José, on the twenty-first day of November thereafter, to show cause why they should not be punished for contempt for violating the injunction order heretofore referred to, by proceeding with the trial of the case in the superior court of the city and county of San Francisco, as aforesaid. The injunction order referred to commanded the petitioners Myra E. Wright and William H. Wright, as plaintiffs in said action, to refrain from proceeding with the trial by the impanelment of a jury, examination -of witnesses, or in any manner whatsoever in said action against the Jersey Island Packing Company, defendant, “now and heretofore pending in the superior court of the state of California in and for the city and county of San Francisco, and assigned to department five of said superior court.”

• From these facts, which are admitted by the demurrer, two main questions are presented for consideration: 1. Under the present condition of the practice, is the so-called bill of discovery as a separate proceeding still in force Í and 2. Is it competent for one superior court to enjoin the trial of an action pending in another superior court, properly brought therein, and of which it has jurisdiction 1

A bill of discovery in the old chancery courts was an auxiliary or assistant proceeding to the courts of law, and arose from the defects in the courts of common law to compel a complete discovery by the oath of the parties in the suit. (2 Story’s Equity Jurisprudence, secs. 1480-1484.)

Modern legislation, however, has greatly interfered ivith the practical exercise of the auxiliary jurisdiction for discovery, by introducing simpler and more efficacious methods in its stead, and thus rendering resort to it unnecessary, and even inexpedient. In some of the states a suit for discovery, properly so called, is expressly abolished by statute, and in all of them is utterly inconsistent with both the fundamental theory and with the particular doctrines and methods of the reformed procedure. (Pomeroy’s Equity Jurisprudence, sec. 193.) Even under the old system it was laid down as a rule that courts of equity would not entertain a bill for discovery to assist a suit in another court, if the latter of itself was competent to grant the same relief; for, as said, in such a ease the proper exercise of jurisdiction should be left to the court where the suit was depending. (2 Story’s Equity Jurisprudence, sec. 1495.) In this state, as well as most of the other states at this time, the parties to the action, as well as other interested persons, may be witnesses compellable to give testimony in an action or proceeding (Code Civ. Proc., sec. 1879), and for disobedience to subpoena, or refusal to be sworn or answer as a witness, the party to the action may be punished as for contempt, and his complaint or answer may be stricken out. (Code Civ. Proc., sec. 1991.)

Under the present conditions, therefore, the auxiliary pro- • ceeding of a bill for discovery in a separate court is altogether unnecessary, as the court in which the action is to be tried possesses all the necessary power to attain the same result. Full relief can now be obtained and granted in the same tribunal. Hence, there is no longer any reason or necessity for a separate proceeding in another forum for the purpose of aiding the court in which the action is pending in the trial of the cause, and it is a legal maxim that, when the reason of a rule ceases, so should the rule itself; and, therefore, although the separate proceeding by bill of discovery has not been expressly abolished in our state, as it has been in most of the others, under our system of courts and judicial procedure it could not well exist in this state.

If the trial of an action before a court of competent jurisdiction in the city and county of San Francisco can be interrupted by filing a so-called bill of discovery in Santa Clara County, any action pending or on trial in any part of the state may be suspended by a like collateral proceeding commenced in another county, and in the most distant part of the state. And the action thus suspended, in the midst of a trial, might be tied up a year or two, until demurrers and motions for change of venue in such collateral proceeding could be disposed of, and appeals from the judgment therein, and from its various branches, could be finally determined. Such a practice would be simply intolerable. Even in England, whence our system of jurisprudence was originally borrowed, the distinction between courts of equity and courts of law has been abolished, and there is therefore in that country no longer any necessity for the so-called bill of discovery to aid another court in the trial of an action at law.

2. Because the constitution confers upon the superior court jurisdiction in cases of equity, it does not follow that the legislature is thereby prohibited from regulating the practice and proceedings in such cases. At the time Judge Story compiled his work on the subject of Equity Pleading, he said: “Equity pleading has, indeed, now become a science of great complexity, and a very refined species of logic, which it requires great talents to master in all its various distinctions and subtle contrivances, and to apply it, with sound discretion and judgment, to all the diversities of professional practice.” (Story’s Equity Pleading, sec. 13.)

No one would pretend that the old mode of practice and forms of pleading in equity are in force in this state any more than the old forms of pleading at common law. From the beginning, in this state, the practice, pleadings, and pro ceedings in equity, as well as at common law, have been regulated by statute. We have but one form of action, and that applies to equity as well as law, and the pleadings in all civil actions, and the rules by which their sufficiency is determined, are prescribed by the code; (Code Civ. Proc., sec. 421.) We have no so-called bill in equity—either for discovery or for any other relief—with its formal parts according to the old practice referred to by Judge Story. Instead thereof we have the same form of complaint as in actions at law, merely consisting of “a statement of the facts constituting the cause of action in ordinary and concise language.” (Code Civ. Proc., sec. 426.) If the legislature can thus radically change the pleadings and practice in equity proceedings, as it has done, it cannot be doubted that it possesses the power also to regulate the practice of-granting preventive relief, including injunctions. Under the title of 11 Specific and Preventive Belief, ’ ’ in the Civil Code, it is declared: “Specific or preventive relief may be given in the eases prescribed in this title, and in no others.” Then follow the cases specified, being .three in number, none, however, relating to the ease at bar, and by section 3423, under the same title, it is declared that an injunction cannot be granted “to stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded, unless such restraint is necessary to prevent a multiplicity of such proceedings.” (Civ. Code, secs. 3366, 3423.) It is not pretended, nor could it well.be, that the injunction in this ease was to prevent a multiplicity of actions or proceedings; on the other hand, it added another action to the one already pending. And in the action then pending in the city and county of San Francisco the testimony sought to be had in the action or proceeding in the: county of Santa Clara by the so-called bill of discovery could have been taken and used in the former action. Therefore, the action or proceeding now under consideration was not only unnecessary, but expressly prohibited by the code. In Spreckels v. Hawaiian etc. Co., 117 Cal. 377, these sections of the code were fully considered, and it was there held that the provisions of the Civil Code upon the subject of specific and preventive relief are designed to cover the whole subject, and are not mere rules of procedure,- but define and regulate rights, and that the constitutional grant to the superior court of jurisdiction in all cases of equity was not intended as a limitation upon the power of the legislature to regulate the rights of persons; and the legislature may either create new rights under which new cases in equity may arise, without endangering the jurisdiction of the courts of equity, or may cause some rights to cease to exist so that certain cases which courts of equity once entertained can no longer arise, without diminishing the jurisdiction of the superior courts in all cases in equity.

The superior court of Santa Clara County was without jurisdiction to enjoin the action then pending in the city and county of San Francisco, or the parties plaintiffs (respondents herein) from prosecuting said action.

A peremptory writ of prohibition is granted as prayed.

Henshaw, J., concurred.