241 P. 108 | Cal. Ct. App. | 1925
On application of petitioner this court issued a writ of mandate, requiring the respondent, as Sheriff of Orange County, to advertise and sell property on which levy has been made under an execution, or show cause why he should not so proceed. Respondent by his answer seeks to justify his refusal by showing that he has been enjoined and restrained by an injunction issued out of the superior court of Orange County.
In March, 1915, in the superior court of Los Angeles County, a money judgment was entered in favor of W.H. Brown, plaintiff, against Walter C. Rowell and Ethel Rowell, defendants. The execution was issued on the first day of July, 1925, pursuant to an order of the superior court of Los Angeles County. Prior to the injunction the sheriff levied upon personal property and also upon real property as property of the defendants.
After the levy made under the execution the defendants Rowell commenced an action in the superior court of Orange County by verified complaint, wherein they alleged facts whereby they sought to show that it was inequitable to permit the enforcement of said judgment against them. On presentation of that verified complaint and an undertaking approved by the court, the superior court of Orange County granted a temporary restraining order and an order on Brown and his attorney and the Sheriff of Orange County, defendants, requiring them to appear and show cause why an injunction should not be granted. At the hearing of that matter, on August 7, 1925, the court granted the temporary injunction, and at the same time allowed plaintiff five days to amend the complaint. *526 That amendment was filed on August 12, 1925. Said complaint, with the amendment thereto, and certain affidavits and other documents which were before the superior court of Orange County at the hearing on August 7th, are to be found in respondent's return herein and in the supplemental petition of petitioner Brown filed herein on August 10, 1925. At the hearing of this proceeding before this court on August 24, 1925, it was stipulated that said supplemental petition may be considered the same as if it had been filed prior to the issuance of the alternative writ of mandate.
[1] The facts, as above stated, raise a question concerning the extent and the limits of power of a superior court to interfere with the execution of the judgment of another superior court. A like problem was presented in Von Der Kuhlen v.Cline,
The same subject was before the supreme court at an early date in Buffandeau v. Edmondson,
So here it is likewise unnecessary to consider whether the complaint in the superior court shows a proper case for an injunction. For the present purpose it is enough that the nature of that action, as shown by the complaint, is that the plaintiff therein has sought to state equities which he claims entitle him to an injunction, and that that court in the exercise of its discretion has held that the complaint on the face of it states facts which entitle the plaintiff to a restraining order and a temporary injunction, which will hold the property and the levyin status quo until the merits of that action can be determined. If that were clearly and solely an action at law (as in Von Der Kuhlen v. Cline, supra), wherein the court clearly had no power to grant an injunction, we agree that an injunction granted therein *528 would not affect the duty of the sheriff to proceed under the execution, and he would be subject to mandamus to compel him to proceed. [2] But we think that the writ of mandamus should not be used as a writ of error to interfere with an order of injunction made by a court where the court was acting within its jurisdiction, even though such action may be erroneous.
The alternative writ is discharged and the peremptory writ denied.
Curtis, J., and Hahn, J., pro tem., concurred.