73 Cal. App. 2d 943 | Cal. Ct. App. | 1946
This proceeding arises out of an action for damages for breach of contract, pending in the Superior Court, San Francisco, wherein A. L. Adkins and John J. Wintersteen are plaintiffs and Robert McCarthy, the petitioner herein, is defendant. The complaint therein alleges that in 1942 petitioner engaged Adkins and Wintersteen to obtain for him certain contracts; that they procured two contracts for war housing projects at Richmond and one for a similar project at Alameda, and that petitioner’s gross profit from the three contracts was $385,000; that ten per cent is a reasonable sum for their services, and that petitioner has refused to pay. The demand is for $38,500.
The petitioner filed an amended answer wherein by a separate defense he pleaded that by presidential orders contracts such as those sued on are illegal. The ease is ready for trial before a jury. It is properly triable by jury (Code Civ. Proc., § 592) and the parties have stipulated to so try it.
Petitioner, proceeding under section 597, Code of Civil Procedure, made a motion for ‘ ‘ an order to proceed to trial upon the special defense . . . that the alleged contract ... is illegal and void as against public policy and good morals.” The presiding judge in granting the motion made an order (obviously in the interest of efficiency and economy) reading as follows: “In this action the motion for a separate trial on the special issue of illegality ... is granted but on condition that in the event the verdict of the jury on that issue is against the defendant the same jury shall forthwith proceed to hear testimony and render a verdict on the other issues in the case, and on the further condition that the evidence taken on the issue of illegality, so far as it is relevant, competent and material, shall be considered on the trial of the remaining issues of the ease.”
Petitioner later made a motion to strike the conditions from the order on the ground that the issue touching public policy is one of law which must be determined by the court. This motion came before the succeeding presiding judge, who denied it and then set the ease for trial.
The petitioner alleges herein, and now contends, “that the action of said Respondent and the action proposed to be taken by Respondent Court in the selection of a jury for the trial of the issue of public policy involved therein are in excess of the jurisdiction and authority of said Respondent Court,” and the prayer is that the respondent court be prohibited
In the main case the superior court clearly has jurisdiction of the parties and the subject matter.
When the case reaches the trial department the judge responsible for the handling of the case from then on will have before him the litigation in all its phases, which was not the case when the two preliminary motions were made in the department of the presiding judge. He will have control of the order of proof (Code Civ. Proc, § 2042). In the light of all the circumstances then presenting themselves and in the exercise of his discretion he may conclude that the question of the legality of the contract is (a) purely one of law, in
If the trial judge, with the whole case before him and upon due consideration of the business of the court, the convenience of litigants, attorneys, jurors, and witnesses and all other factors, should conclude that the conditions attached to the original order should be removed, he has the undoubted power sua sponte and unceremoniously to remove them, for the order was merely an “intermediate order or ruling” (Estate of Rawson, 66 Cal.App. 144, 145 [225 P. 474]) not binding on the trial judge (Lawrence v. Ballou, 37 Cal. 518, 521; Wrightson v. Dougherty, 5 Cal.2d 257, 265 [54 P.2d 13]). In De la Beckwith v. Superior Court, 146 Cal. 496, 499 [80 P. 717], there will be found a full discussion of the subject. See, also, Kelly v. Liddicoat, 35 Cal.App.2d 559, 564 [96 P.2d 186] and cases cited and 21 Cal.Jur. page 124. Late cases applying the.rule are Frantz v. Mallen, 204 Cal. 159, 161 [267 P. 314] ; Bank of America v. Superior Court, 20 Cal.2d 697, 702 [128 P.2d 357] ; Davis v. Stroud, 52 Cal.App.2d 308, 315 [126 P.2d 409], and Pulvermacher v. Los Angeles etc. Committee, 61 Cal.App 2d 704, 711 [143 P.2d 974], Indeed the petitioner recognized that the original order had no finality when he moved its amendment in an attempt to remove the conditions.
We express no opinion as to whether the issue of the legality of a contract is within the purview of section 597, Code of Civil Procedure. That section is limited to cases where “the answer pleads that the action is barred by the statute of limitations, or by a prior judgment, or that another action is
The alternative writ of prohibition is discharged and a peremptory writ is denied.
Nourse, P. J., and Dooling, J., concurred.