This is an application for a writ of prohibition, and the following state of facts is disclosed by the petition: The Grangers’ Bank of California was the owner of certain warehouses, situated in the counties of Fresno, Tulare, etc., some of these warehouses being erected upon the lands of the bank, and others оn the lands of the railroad company, leased to the bank by that corporation. Upon the sixth day of January, 1890, the bank entered into a contract of sale with one W. G. Ross, wherein it was agreed, among other things, that said) Ross should pay the bank $49,000, at the times and in the manner therein provided, and in consideration therеof the bank agreed to sell and transfer to said Ross these warehouses, together with all scales, platforms, etc., belonging to said warehouse business. It was рrovided that the title to the warehouses should not vest in Ross until the money was paid as covenanted. It was further understood that the interests of the bank in and to the grоund upon which the warehouses were situated should pass to Ross upon the consummation of the sale. The right of re-entry by the bank upon default upon the part of Ross was also a condition of the contract. Under this agreement Ross entered into the possession of the warehouses, and in the fall of the year 1890, being largely indebted to the bank, made an assignment of all the property referred to in the contract to one Showers, for the purpose of securing his liability to the bank, and Showers thereupon took possession thereof. About January 1, 1891, the bank, claiming that Ross had forfeited his rights under the contract by reason of certain defaults on his part, took possession of the property, claiming to be the true owner, and ever since has had such possession. Thereafter Ross commenced an action in the superior court of the city and county of San Francisco against Showers and the bank, alleging, among other matters, that his indebtedness to the bank is more than offset by the receipts from the rents, issues, and profits of the business; that the contract has not been forfeited, and hе has demanded the possession of the warehouses, which has been refused; that the use and occupation are of great value, and he prays fоr an accounting as to the rents,
We have not stated all the facts disclosed by the record bearing upon petitioner’s first ground of contention, as we shall not discuss it, being satisfied that the second ground relied upon has sufficient merit to entitle it to the relief demanded. It is to be regretted that counsel opposing the application has not seen fit tо attempt to enlighten the court, either in his oral argument or brief, upon the merit of appel
The present status of the case of Ross v. Showers, as disclosed by the facts we have stated, indicate it to be an action to recover the possession of real property, and for an' accounting as to the rents, issues, and profits thereof. It also appears that said real property is not situated in the county where the action was commenced and is now pending. For these rеasons the superior court of the city and county of San Francisco, where the action was brought, has no jurisdiction over the subject matter. This question was directly passed upon, and the law declared, in the case of Fritts v. Camp,
For the foregoing reasons, let the writ issue as prayed for.
We concur: De Haven, J.; Harrison, J.; McFarland, J.