Ruggles v. Superior Court

Van Fleet, J. Application for prohibition. Petitioner is the administrator of the estate of one Henry Welch, deceased, in course of administration in the department of said respondent superior court presided over by said Hon. J. V. Coffey, judge thereof. On February 16, 1894, an order was made and entered in said estate, directing petitioner, as such administrator, to pay to the widow of said deceased seven thousand three hundred and seventy-five dollars, as accrued and unpaid family allowance. From this order the administrator, on February 20, 1894, perfected an appeal to this court. Thereafter, the widow moved this court to dismiss said appeal, which motion was subsequently, on the fifth day of March, denied, and the appeal is still pending and undetermined. Subsequent to the denial of said motion, the respondent judge, on the seventh day of March, at the instance of the widow, caused a citation to be issued and served upon petitioner, requiring said petitioner to show cause before the respondent superior court, on the eighth day of March, 1894, why he should not be punished for contempt in failing and refusing to obey the order of February 16th, requiring him to pay said family allowance. On the last-mentioned date, petitioner, in obedience to the citation, appeared before said court, and in response thereto brought properly to the attention of the court the said appeal and the order of this court denying the motion to dismiss the same, and then objected that neither the superior court nor the judge thereof had any power or jurisdiction to proceed with or hear said matter of contempt, or to enforce said order for the payment of family allowance, by reason of the pendency of the appeal. But notwithstanding the showing so made by petitioner, and disregarding his objections, said superior court and the judge thereof, respondents, threatened to proceed in said matter, and to punish petitioner for his refusal to obey said order; whereupon this application for prohibition was made. The sole question arising is as to whether the supe [128] rior court is acting "in excess of its jurisdiction in the premises. Under the facts stated we are constrained to hold that it is. The appeal from the order in question operated as a supersedeas, and stayed all further proceedings in the court below in the particular matter involved in the order appealed from. By the appeal the order or decree is set at large, and the subject matter removed from the jurisdiction of the lower court, until the appeal has been determined, and the matter remitted back from the appellate court. In the case of Pennie v. Superior Court, 89 Cal. 31, the lower court made an order for family-allowance, from which an appeal was taken. Pending the appeal the lower court made an order directing the administrator to pay the money allowed by the previous order. The latter order was annulled by this court on certiorari, upon the ground that the appeal had removed the subject matter of the order from the jurisdiction of the superior court, and it had not authority to further proceed with its enforcement pending the appeal. And in the recent case of Ex parte Orford, 102 Cal. 656 (opinion filed in Department Two of this court June 8,1894), the same question arose: An administratrix of an estate in probate had been ordered to pay a certain claim against the estate. She appealed from the order, but, notwithstanding her appeal, the lower court proceeded against her as for a contempt in refusing obedience to its order, and punished her by imprisonment until she should comply with the order. This court discharged her on habeas corpus, holding that “ the petitioner, having appealed and stayed all proceedings upon the order which she is charged with violating, cannot, pending her appeal, be punished for a failure to obey it.” It is urged here by the respondents, however, as it was on the motion to dismiss the appeal, that the appeal attempted to be taken by petitioner herein is ineffectual to stay the hand of the lower court, because no appeal lies from an order such as the one under consideration. But that question does not arise in this proceeding. An appeal from the order has been taken to [129] this court, and this court has refused to dismiss it; this determination is as effectual for the purposes of this proceeding as if determined for all purposes. Its effect is that this court is thus far entertaining the appeal, and while it does so the respondents are not at liberty to proceed in the matter. Whether the order in question shall be ultimately held appealable is a question that will properly arise in the matter in which the appeal is pending, but, for the reason stated, it is not involved here. The proceedings complained of being in excess of the jurisdiction of respondents, a peremptory writ should issue as prayed. It is so ordered. De Haven, J., Garoutte, J., Harrison, J., McFarland, J., Beatty, C. J., and Fitzgerald, J., concurred. Rehearing denied. Beatty, C. J., dissented from the order denying a rehearing, and filed the following opinion on the 17th of July, 1894: