Preston v. Superior Court of Los Angeles

*659 ANGELLOTTI, C. J. Petitioner seeks a writ of prohibition enjoining the superior court of Los Angeles County from proceeding with the trial of an action instituted against him therein for the recovery of money alleged to be due from him and others to a corporation by one who sues as the receiver of the property of the corporation appointed by the superior court in another action, in which such corporation was the defendant, and also to enjoin such receiver from further acting under the order of appointment. In so far as the writ is sought against the alleged receiver it will not lie, as he is not exercising judicial functions. As to the superior court, petitioner’s claim here is that the superior court had no power in such action to appoint a receiver, with the result that the order of appointment is a nullity. If we assume this to be true, it does not follow that there is any excess of jurisdiction on the part of the superior court in entertaining and determining the action brought against petitioner. That the superior court has full and complete jurisdiction to hear and determine that action cannot be doubted. [1] The question of the right of the plaintiff therein to maintain the action in the capacity in which he sues is a question that must be determined in such action exactly as where one sues as the administrator of the estate of a deceased person, any question as to his right to sue in that capacity must be determined in the action itself. If, in the determination of such a question, the trial court errs, it is error in the exercise of jurisdiction, and the aggrieved party’s remedy is an appeal from the judgment given in the action. Prohibition lies only to restrain acts in excess of jurisdiction, and the petition in this matter fails utterly to state a case in this behalf. We express no opinion as to the validity of the order appointing a receiver, as that question is not here involved. The application for a writ of prohibition is denied. Shaw, J., Wilbur, J., Sloane, J., Lawlor, J., and Olney, J., concurred. Rehearing denied. In denying a rehearing the court filed the following opinion on February 15, 1921: