Kelsey v. Byers

SHAW, J. This is an application for a peremptory writ of mandate to be directed to the respondent as sheriff of San *229 Diego County, commanding him to execute a writ of execution issued out of the superior court of Los Angeles County in a certain action wherein Van R Kelsey was plaintiff and James Kennedy was defendant, and requiring him to immediately, in accordance with law, proceed to sell the personal property upon which said execution was levied. As shown by answer to the petition for the writ, his refusal to proceed • in enforcing the writ of execution is based upon a restraining order issued in the case of the City of San Diego v. Van B. Kelsey and James C. Byers, by the superior court of San Diego County enjoining him from so doing. [1] In a proceeding numbered 2952, post, p. 229, [180 Pac. 662], wherein Van R. Kelsey is petitioner and the superior court of San Diego County is respondent, involving the validity of such restraining order and injunction, this court, for the reasons stated in an opinion this day filed, held that said superior court, by reason of continuing the hearing of the application made by the city of San Diego for a temporary injunction, had no jurisdiction to make any order in said matter other than one to dissolve the restraining order. It follows from what is said in the opinion so filed that the writ of mandate as prayed for should issue against said J ames C. Byers, as sheriff, and it is so ordered. Conrey, P. J., and James, J., concurred.