183 P. 235 | Cal. Ct. App. | 1919
Prohibition. The question involved is whether the alternative writ heretofore issued should be made peremptory or the proceeding therefor be dismissed.
The petition for the writ is founded upon facts as follows: The Southern Pacific Land Company instituted an action against petitioner in the superior court of Imperial County to recover possession of a tract of land occupied by petitioner, together with damages for the retention thereof, and to quiet its title thereto. The rights of the plaintiff, as asserted in the complaint, were put in issue by an answer filed by petitioner, and the case was submitted to a jury called for the trial thereof. The jury brought in a verdict for defendant. Thereupon plaintiff, waiving all claim to damages for defendant's withholding possession of the property, immediately moved the court to set aside the verdict and, as to title to the property and right of possession thereof, render judgment in favor of plaintiff. This motion was granted, followed by findings made by the court upon which judgment was entered, from which defendant appealed. To this petition the respondents have interposed a general demurrer.
The court had jurisdiction of both the subject of the action and the parties thereto; and petitioner, while claiming that he was rightfully entitled to a trial by jury, concedes that if the court in the first instance had denied him such right, the ruling would have been mere error to be corrected on appeal. (Powelson v. Lockwood,
Moreover, conceding petitioner's claim that the court acted without jurisdiction, we are clearly of the opinion that he had a plain, speedy, and adequate remedy in the ordinary course of law by an appeal from the judgment rendered, which is a sufficient answer to the application made. By the taking of an appeal and the giving of a sufficient undertaking, not only would he be accorded redress for any errors committed by the court in the trial of the case which resulted in the adverse judgment, but likewise protected in his right to the possession of the property pending the final determination of the case.
[2] That petitioner is unable, by reason of his financial condition, to comply with the statute by giving an undertaking entitling him to retain possession of the property, if true, is wholly immaterial, and does not affect the question as to adequacy of the remedy afforded by an appeal.
The proceeding is dismissed.
Conrey, P. J., and James, J., concurred. *537