Opinion
Department One
Application for writ of prohibition.
COUNSEL:
Manuel Eyre, for Petitioner.
H. H. Lowenthal, for Respondents.
OPINION
THE COURT
[11 P. 253] Prohibition. In an action for divorce the court made an order that the defendant show cause why he should not be restrained from seeking to collect the amount of a judgment, which he had recovered against a third party. The petition herein averred in effect that the issues in the divorce suit did not embrace the disposition of property. Such being the case, the demurrer to the petition is overruled.
The answer filed to the petition does not traverse the averment above noted; it states that the respondent, in making the order to show cause, did not profess that it would determine the title to the money due on the judgment, but simply enjoin the disposition thereof until the determination of the divorce suit.
We apprehend that in an action for divorce, if a disposition of property is sought, there should be some pleading (either by the original complaint or by supplemental pleading) by which an issue as to such property would be tendered. It appearing in this cause that no such issue was tendered, the court had no jurisdiction to make the restraining order.
Writ granted.