286 P. 425 | Cal. | 1930
The petitioner herein applies for a writ of prohibition having for its purpose that of preventing the respondent judge herein from proceeding further with the hearing and determination of a certain action pending in the court over which he presides, and also prohibiting the other respondents herein from proceeding further to carry out the provisions of a certain order made by said judge in said action in the matter of the appointment of a referee therein during an early stage in the trial of said action before said court. The case in question was entitled Sidney F.Brock v. Clarence L. Putman, and was commenced in said court during the month of July, 1929, by the filing of a complaint therein, wherein it was alleged that a copartnership between said Brock and Putman had theretofore been entered into, having for the purpose of its members the "entering into the business of mining, locating and operating mining claims, buying and selling the same, and other business of a like nature." The complaint proceeds to allege the wrongful application by the defendant of certain of the moneys, receipts and profits of said partnership to his own use and to the injury of the business thereof, the precise amount of which is unknown to the plaintiff; that after repeated requests on the part of said plaintiff for an accounting and repayment to said partnership of the moneys so misappropriated the defendant has neglected and refused and still neglects and refuses to comply with said request or to make said accounting, and threatens to continue to misappropriate the funds of the copartnership to his own use and to sell the properties of the same and deprive the copartnership and plaintiff in said action of the proceeds of such sale, to the great and irreparable injury of both. The prayer of the complaint is that said copartnership be dissolved and that an accounting be had of the dealings and transactions thereof; that the property of said copartnership be sold and the partnership debts and liabilities paid and the surplus, if any, divided between the plaintiff and defendant according to their respective interests in said copartnership, and for such other and further relief as may be meet in the premises. The defendant Putman answered, denying generally and specifically *225 the existence of any such copartnership, and also denying all of the other allegations of the complaint, and praying that the plaintiff take nothing by his said action. The cause came on for trial in said court and before the respondent judge thereof on the twenty-ninth day of August, 1929; whereupon the plaintiff introduced in evidence a certain document, purporting to be a letter from the defendant to the plaintiff, dated April 24, 1928, the essential portion of which reads as follows: "I got the Bull Moose tied up and have a mill ready to ship upon the property. Have it financed. I let Boggs in on it so he would help finance it, so you see I am still working for the Brock and Putman firm. Will have everything working by the time you get home." Upon the introduction in evidence of this document and upon an objection made by the defendant's counsel to the introduction of certain further evidence on the plaintiff's behalf a colloquy occurred between the trial judge and counsel for defendant, during which the trial judge proceeded to announce his conclusion that the foregoing communication established a copartnership, and that such would be the present and final holding of the court in the action, and that it would be practically useless for the defendant to offer any evidence to the contrary. The judge of the court further proceeded to state that the action had arrived at a stage wherein the court having settled the question that a partnership existed between the plaintiff and defendant, a referee should be appointed to take further evidence in the case upon the issues as to a partnership accounting. These pronouncements on the part of the trial judge were punctuated with objections thereto on the part of counsel for the defendant, but notwithstanding these, the trial judge continued the further trial of the case, and within a few days thereafter made and entered a formal order appointing the respondent Anne O'Keefe a referee in said action for the purpose designated in said order. The court recited therein, "that the trial of one of the issues of fact in the above entitled matter requires the examination of a long account, and it further appearing that a prima facie showing has been made of the existence of a partnership between plaintiff and defendant, it is therefore ordered that the following matters be referred to Anne O'Keefe as sole referee." The order proceeds to recite a *226 number of matters bearing upon the business and accounts of said purported copartnership, and as to these orders "that the parties produce before the said referee all books, deeds, papers and writings in their custody or under their control relating thereto, and that they be examined upon interrogatories or otherwise as the said referee shall direct . . . It is further ordered that said referee report her findings upon the matters referred to prior to the 27th day of September, 1929; and it is further ordered that the trial of the above entitled action be continued until the 27th day of September, 1929, at the hour of 10 A.M., at which time the report of said referee shall be presented to the court, and at which time the parties to the said action may introduce such evidence as they may have regarding the existence of a partnership between plaintiff and defendant and regarding any other issues presented by the pleadings." Upon the making and entry of the foregoing order the petitioner herein applied to the District Court of Appeal in and for the Second Appellate District, Division One, for a writ of prohibition, which was denied ex parte by said court, without an opinion, and a petition for rehearing therein having also been denied, without opinion, the petitioner applied for and was granted a hearing in this court, and the aforesaid matter having been heard herein has been submitted for decision.
It is the contention of the petitioner that since in said action the existence of any copartnership between the plaintiff and the defendant had been denied, the trial court was without jurisdiction at the stage of the trial thereof during which the foregoing colloquy occurred between the trial judge and counsel for the defendant to determine the issue as to whether or not such a partnership as the plaintiff alleged to exist in fact existed, and was also without jurisdiction at that stage of the trial to make and enter its aforesaid order for the appointment of a referee therein without having first accorded to the defendant an opportunity to be heard and to introduce evidence as to the nonexistence of such copartnership. The petitioner further contends that the respondent judge in said action by his aforesaid premature pronouncement of his conclusion that such copartnership had been established and that such would be his final ruling had deprived and disqualified *227 himself from exercising any further jurisdiction in relation to the trial of said action. Wherefore he applied for said writ.
[1] It is conceded that the sole question to be determined upon an application for a writ of prohibition is the question of jurisdiction. It would seem to be too plain for further discussion that the attitude, action and conclusion of the trial court in the aforesaid cause and at the time of the colloquy between himself and defendant's counsel was premature, unwise and unjudicial. The oral and oracular statement of the trial court upon that occasion did not, however, amount to either a decision, finding or order, and, as has been well said by this court in the case of Scholle v. Finnell,
[3] The action being one involving issues as to the existence of a copartnership between the parties thereto and as to the propriety and extent of an accounting, it was such an action as would come within the provisions of sections 638 to 645, inclusive, of the Code of Civil Procedure, which provide for references and trials by a referee. Section 638 thereof provides for the order of a reference upon the agreement *228 of the parties filed with the clerk and entered in the minutes. Section 639 thereof provides as follows:
"When the parties do not consent, the court may upon the application of either, or of its own motion, direct a reference in the following cases:
"1. When the trial of an issue of fact requires the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein;
"2. When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect;
"3. When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action;
"4. When it is necessary for the information of the court in a special proceeding."
It will be noted that the section of the code quoted places no restrictions upon the trial court as to the time during the pendency of said action when it first acquires jurisdiction to appoint a referee therein. The implication of the section is to the contrary, since subdivision 1 thereof provides that: "When the trial of an issue of fact requires the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein." In the case ofFredendall v. Shrader,
It is therefore ordered that the petition herein be and the same is hereby denied.
Preston, J., Shenk, J., Seawell, J., Waste, C.J., Curtis, J., and Langdon, J., concurred. *231