169 P. 685 | Cal. | 1917
This is a proceeding for a writ of mandate. J.M. Brown, Inc., a corporation, had recovered a judgment in the superior court in San Francisco against W. P. Fuller Co. Thereafter, on appeal, the judgment was reversed and a new trial ordered. Subsequently J.M. Brown, Inc., having been adjudicated a bankrupt, the trustee sold the chose in action which the bankrupt had against W. P. Fuller Co. to the petitioner, who then had the cause set for a retrial in the court below in the department presided over by the respondent. Before the day set for the retrial W. P. Fuller Co. filed its bill of costs on appeal and moved to stay all further proceedings in the cause until such costs be paid. This motion was granted by the respondent, who also denied petitioner's motion to vacate the order staying proceedings. *768 The purpose of this proceeding is to secure a writ compelling the respondent to proceed with the retrial of the cause.
Respondent's contention, in answer to the alternative writ issued in this case, is that it is one of the inherent powers of a court of general jurisdiction to stay proceedings upon a retrial until costs of appeal have been paid, the exercise of such power to be within the sound discretion of the trial court, reviewable only for abuse of such discretion. The* circumstances surrounding the making of the order staying proceedings are not before us, and the petitioner does not claim that if the power contended for does exist its exercise was not justified under the facts in this case. Petitioner's right to a writ of mandate rests solely on the determination of the question whether, under any conceivable set of facts, the superior court, before which a case is pending for retrial after a judgment for the plaintiff has been reversed on appeal, has the power to stay such retrial until the costs of the appeal have been paid. If in any case such a stay can be ordered, if such power is vested in the superior court, then its exercise in this instance must be deemed proper. The subject here involved is a matter of first impression in this state. It is nowhere touched upon in the statutes or decisions. We must therefore look to the practice at common law. If the power to stay proceedings as contended for by respondent was inherent in courts at common law, such power would still be vested in the superior courts of this state. (Pol. Code, sec. 4468; Burns v. Superior Court,
Upon the same theory it has been held that a similar power exists in the case of a retrial following a reversal on appeal where the costs of appeal have not been paid. Such a stay was ordered in Jackson v. Schauber, 4 Wend. (N. Y.) 216. Other jurisdictions have also affirmed the discretionary power of trial courts to stay a retrial until payment of costs on appeal. (Clark v. Bay Circuit Judge,
As already stated, we have in the case at bar no facts before us from which the propriety of the respondent's order can be determined. It must, therefore, be assumed that the discretion was properly exercised.
The conclusion reached makes it unnecessary to pass upon the point that the petition is barred by lathes.
The application for a writ of mandate is denied.
Shaw, J., Sloss, J., Henshaw, J., and Angellotti, C. J., concurred. *771