Opinion
Hearing Granted by Supreme Court Oct. 11, 1934.
Proceeding for writ of prohibition by the Los Feliz Investment Company, a corporation, against the Superior Court of the County of Los Angeles.
Alternative writ discharged, and peremptory writ denied.
COUNSEL
Chapman & Chapman, of Los Angeles, for petitioner.
Newlin & Ashburn, of Los Angeles, for respondent.
OPINION
CRAIG, Acting Presiding Justice.
We have here an application for a writ of prohibition to prevent the superior court of Los Angeles county from modifying what purports to be a portion of its judgment. Petitioner has heretofore appealed from such judgment to the Supreme Court.
Beginning with the case of Collins v. Superior Court, 147 Cal. 264, 81 P. 509, we find no expression of the Supreme Court altering or modifying its brief but clear statement that "when a case is such that an appeal from the judgment of the lower court would properly be taken to the District Court of Appeal, a petition to prohibit the proceeding should be addressed to that court." Further, that by this statement it was the deliberate intention to make a precedent to be followed in like cases thereafter. The only reason indicated for this direction, viz., that the Constitution confers the same authority to issue such writs on the District Court of Appeal as upon the Supreme Court, necessarily requires the conclusion that where an appeal is taken to the Supreme Court the petition should be addressed to that court.
We find no instance where this pronouncement of policy has been disregarded by any District Court of Appeal, except where the record fails to disclose that the question of the propriety of that court entertaining an application for a writ when the appeal would lie to the Supreme Court was called to the attention of the District Court of Appeal or was discussed or considered in its decision. This was the case of Favorite v. Superior Court, 181 Cal. 261, 184 P. 15, 8 A. L. R. 290. The proceeding was begun in the District Court of Appeal and after decision was transferred to the Supreme Court. All that the Supreme Court decision had to say upon the point here under consideration was that the District Court of Appeal has jurisdiction the same as the Supreme Court to issue a writ of prohibition. However, nothing is said as to whether or not such action by the District Court of Appeal in that proceeding was approved by the Supreme Court. The same is true of Dawson v. Superior Court, 158 Cal. 73, 110 P. 479, and of In re Application of Davidson, 167 Cal. 727, 141 P. 216. On the other hand, we are cited to no decision of the District Court of Appeal in which the question has been called to its attention and given judicial consideration, where the precedent of Collins v. Superior Court and the admonition contained in its decision has not been followed. Cases where that rule has been applied and restated are Estate of Turner, 39 Cal.App. 56, 177 P. 854; Tannahill v. Superior Court, 58 Cal.App. 623, 209 P. 77; and Gunder v. Superior Court, 100 Cal.App. 337, 279 P. 822.
Petitioner attempts to distinguish the Tannahill Case on the ground that the writ there sought was in aid of the appeal, and the Gunder case on the ground that a question involved in the proceeding was one which was contained in the appeal. In Collins v. Superior Court nothing is said by the Supreme Court about these distinctions. It is true that the opinion in the Gunder Case states that if the petition were to be granted questions involved in the appeal would necessarily have been determined by the appellate court. However, it is clear from the language preceding this statement that the decision had been reached in the opinion under the general rule of policy, and the fact that questions involved in the appeal would also require decision if the writ were issued was only an additional reason for refusing to allow it.
The alternative writ is discharged, and a peremptory writ denied.
We concur: DESMOND, J.; WILLIS, Justice pro tem.