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Mitchell v. Superior Court

Court of Appeal of California, Second District, Division One
Jul 6, 1950
98 Cal.App.2d 304 (Cal. Ct. App. 1950)

Summary

rejecting argument that the alternative remedy was inadequate because it "will take time and cost money"

Summary of this case from Duque v. Superior Court of Gaum

Opinion

Docket No. 17929.

July 6, 1950.

PROCEEDING in mandamus, prohibition and certiorari. Petition denied.

William C. Ring for Petitioner.


THE COURT.

Petitioner has pending in the superior court an action for the partition of real property. Trial was had for two days.

While plaintiff was married to defendant, the property was acquired as community property. In 1931 petitioner was granted a divorce from defendant in the State of Texas. Texas, of course, could not adjudicate title to California real property. Defendant as minister of a church uses the property, which is improved with a church building, without paying anything to petitioner.

Petitioner contends that the court should have partitioned the property, either in kind, or by sale and division of the proceeds. The court made a minute order, finding that at the time the property was acquired petitioner's equity in it was $500. Apparently no judgment has yet been rendered.

[1] While petitioner presents a convincing argument, we think her remedy is by appeal. The rules respecting high prerogative writs have been recently reviewed and restated in Phelan v. Superior Court, 35 Cal.2d 363 [ 217 P.2d 951]. There it is said: "Where . . . there is a right to an immediate review by appeal, that remedy is almost as speedy as a writ proceeding, under present practice, and should be considered adequate unless petitioner can show some special reason why it is rendered inadequate by the particular circumstances of his case."

The most petitioner shows in this regard is that an appeal will take time and cost money. This is insufficient.

For the reasons given in Phelan v. Superior Court, supra, and in Robinson v. Superior Court, 35 Cal.2d 379 [ 218 P.2d 10], the petition is denied.

Petitioner's application for a hearing by the Supreme Court was denied August 31, 1950.


Summaries of

Mitchell v. Superior Court

Court of Appeal of California, Second District, Division One
Jul 6, 1950
98 Cal.App.2d 304 (Cal. Ct. App. 1950)

rejecting argument that the alternative remedy was inadequate because it "will take time and cost money"

Summary of this case from Duque v. Superior Court of Gaum

In Mitchell v. Superior Court, 98 Cal.App.2d 304 [ 219 P.2d 861], which was a proceeding in mandamus and prohibition, it was said at page 305: "The most petitioner shows in this regard is that an appeal will take time and cost money.

Summary of this case from Lohr v. Superior Court
Case details for

Mitchell v. Superior Court

Case Details

Full title:ALTHEA V. MITCHELL, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES…

Court:Court of Appeal of California, Second District, Division One

Date published: Jul 6, 1950

Citations

98 Cal.App.2d 304 (Cal. Ct. App. 1950)
219 P.2d 861

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