63 Cal. App. 2d 651 | Cal. Ct. App. | 1944
The plaintiffs in an action in the Superior Court of the County of Los Angeles, in which action the said
Petitioners contend that prohibition will lie in this instance because no remedy is available by way of appeal, the order in question not being appealable. It is true that the order above mentioned is not appealable, being in effect merely an order allowing appellants to proceed with the preparation of a record on appeal. However, it appears that petitioners will be afforded an adequate remedy in the ordinary course of proceedings on defendants’ appeal from the judgment. The question as to the jurisdiction of the trial court to grant the relief given defendants in the preparation of their record on appeal can be passed on, with a sufficient record, upon defendants’ appeal from the judgment. (Hume v. Lindholm, 85 Cal.App. 86 [258 P. 1006]; Kaltschmidt v. Weber, 136 Cal. 675 [69 P. 497] ; Kramm v. Stockton Electric R.R. Co., 22 Cal.App. 761 [136 P. 534].) The following cases serve to illustrate the fact that the question of defendants’ alleged default in the matter of preparing a transcript.
It is true that in Jones v. Superior Court, 78 Cal.App. 163 [248 P. 292], a peremptory writ of prohibition was granted to prevent the superior court from settling and certifying a reporter’s transcript. But in that case the court,' after holding that the order granting appellant relief was not an appealable order, merely stated, “Prohibition is the only adequate remedy available for the injured party.” The possibility of review and consideration of the question upon the appeal proper is not there discussed. Moreover, the question of whether a plain, speedy and adequate remedy at law exists depends upon the circumstances of the particular case; and the determination of that question, to some extent at least, rests in the discretion of the court. (Frye v. Superior Court, 17 Cal.App.2d 198, 201 [61 P.2d 778] ; Fisher v. Superior Court, 23 Cal.App.2d 528, 535 [73 P.2d 892].)
In Hohnemann v. Pacific Gas & Elec. Co., 29 Cal.App.2d 551 [85 P.2d 151], an appeal from an order of the superior court, denying a motion to terminate proceedings for the preparation of a transcript on appeal under the alternative method, was dismissed. The following quotation is taken from the latter case,
It appearing that the petitioners have a complete and adequate remedy in the ordinary course of law, the petition for a peremptory writ of prohibition is hereby denied.
York, P. J., and White, J., concurred.