Barnard v. Municipal Court of City and County of San Francisco

• Decision Date: 18 June 1956
• Docket Number: No. 16768,16768
• Citation: 142 Cal.App.2d 324,298 P.2d 679
• Court: California Court of Appeals Court of Appeals
• Parties: Alfred BARNARD, Petitioner and Appellant, v. The MUNICIPAL COURT OF The CITY AND COUNTY OF SAN FRANCISCO, State of California, and The Honorable Judges Thereof, Respondents.

Page 679

298 P.2d 679

142 Cal.App.2d 324

Alfred BARNARD, Petitioner and Appellant, v. The MUNICIPAL COURT OF The CITY AND COUNTY OF SAN FRANCISCO, State of California, and The Honorable Judges Thereof, Respondents.

No. 16768.

District Court of Appeal, First District, Division 1, California.

June 18, 1956.

James C. Purcell, Michael Riordan, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen. of the State of Cal., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondents.

BRAY, Justice.

Petitioner was charged and acquitted of the violation of section 311, subdivision 3, Penal Code (selling and distributing obscene and indecent writings, papers and books). At the time of his arrest, the arrenting officers seized certain publications in petitioner's possession which they delivered into the custody of the municipal court, and which were used as exhibits at defendant's trial. After his acquittal petitioner filed in the superior court a petition for writs of prohibition and mandate against the municipal court, alleging that the latter has threatened to make an order that said publications be destroyed. The petition alleges that the municipal court claims jurisdiction to proceed to destroy said publications under the authority of sections 312 and 313, Penal Code. ¹ The petition then alleges that these sections are unconstitutional as depriving petitioner of his property without due process of law; that petitioner made such objection in the municipal court; and that the municipal court has no jurisdiction to make the threatened order.

The superior court denied the petition on the ground that petitioner 'has a plain, speedy and adequate remedy in the ordinary course of law, to wit, an action for claim and delivery.' ² Petitioner appeals from the judgment of denial.

Adequate Remedy.

The basic question here is whether the superior court abused its discretion in denying issuance of either writ.

The issuance of prohibition and mandamus lies within the sound discretion of the court, even where questions of constitutionality are raised. It will be denied if the applicant has a plain, speedy and adequate remedy at law. See 3 Witkin, California Procedure, 2472; Rescue Army v. Municipal Court, 28 Cal.2d 460, 171 P.2d 8; Providence Baptist Church of San Francisco v. Superior Court, 40 Cal.2d 55, 251 P.2d 10; Phelan v. Superior Court, 35 Cal.2d 363, 217 P.2d 951; Code Civ.Proc. § 1086. The burden is on the petitioner to show that he does not have such remedy. Phelan v. Superior Court, supra, 35 Cal.2d at page 366, 217 P.2d 951.

The remedy referred to by the trial court, namely, a claim and delivery action, is open to petitioner. See Modern Loan Co. v. Police Court, 12 Cal.App. 582, at page 594, 108 P. 56, at page 61, involving alleged stolen jewelry in the possession of the police court taken upon a search warrant, the title to which the police court was attempting to try, where the court said 'the law has provided the means for settling such question by the ordinary action of claim and delivery.' To the same effect, People v. Lawrence, 140 Cal.App.2d 133, 295 P.2d 4 (allegedly stolen money). Faulkner v. First National Bank, 130 Cal. 258, at page 264, 62 P. 463, at page 465, points out that the so-called and delivery action embraces the common law action of detinue, which contemplates that 'the original taking was not unlawful, but the detention' is, and provides 'an auxiliary remedy by which, when a party brings an action to recover personal property, he may 'claim' that the property be immediately delivered to him at the commencement of the action, and without waiting the trial.' 130 Cal. at page 263, 62 P. at page 464. Thus, the remedy is plain, speedy and adequate. Petitioner contends that claim and delivery will not lie because he contends that the publications are in custodia legis. Prior to defendant's trial and while they were being held as evidence they were in such custody, but now that they are no longer required for that purpose they are not in such custody, presuming, of course, that they are not obscene or indecent. If they are, the court, or the officers thereof, would not be required to return them to petitioner, even though his contention that section 313 providing for their destruction is unconstitutional, is correct. Havemeyer v. Superior Court, 84 Cal. 327, 24 P. 121, 10 L.R.A. 627, and Withington v. Shay, 47 Cal.App.2d 68, 117 P.2d 415, 119 P.2d 1, are not in point. In the Havemeyer case it was held that property in the hands of a receiver appointed by the court is in the hands of the court and that it is in the court which 'holds, administers, and disposes of the property * * * and, so long as the property remains undisposed of, action by the court is necessary.' 84 Cal. at page 390, 24 P. at page 137. In our case, if, as petitioner contends, the statute providing for the destruction of the publications is unconstitutional, nothing remains for the court to do except to turn them over to petitioner if he proves his right to possession. The Withington case dealt with surplus funds left in the hands of the sheriff after an execution sale by him. It was held that those funds were in custodia legis, the court pointing out in effect it was the court's duty to distribute such funds 'to the respective parties in interest as their interests may subsequently be made to appear * * *.' 47 Cal.App.2d at page 73, 117 P.2d at page 417.

"The question whether there is a 'plain, speedy, and adequate remedy in the ordinary course of law,' within the meaning of the statute, is one of fact, depending upon the circumstances of each particular case, and the determination of it is a matter largely within the sound discretion of the court. * * *" Glasser v. Municipal Court, 27 Cal.App.2d 455, 458, 81 P.2d 260, 262, quoting from 21 Cal.Jur. p. 584 et seq.

Petitioner has not met the burden of showing that his remedy by claim and delivery is not plain, speedy and adequate. It should be pointed out that before the remittitur can go down to the superior court, 30 days must elapse after final determination of this appeal, during which time petitioner is protected by the stay order of the superior court. Obviously that gives ample time for petitioner to bring a claim and delivery action.

Ross v. O'Brien, 1 Cal.App.2d 496, 36 P.2d 1108, effectively answers petitioner's contention that the publications are in the type of custodia legis which would bar a claim and delivery action. There the appellant filed a petition in the superior court for a writ of mandate to compel the respondent, a constable, to deliver the appellant certain property belonging to the appellant which the constable had seized on execution. The appellant had filed the necessary bond for release of the execution, and the justice's court out of which the execution had issued had ordered the constable to release the property to appellant. The constable refused to do so for the reason that his fees had not been paid. The superior court denied the petition. On appeal the reviewing court held that the denial was proper, because 'the common action of claim and delivery would assure to appellant a clear, speedy, and adequate remedy.' 1 Cal.App.2d at page 502, 36 P.2d at page 1110.

Petitioner contends that a claim and delivery action could not be brought in the municipal court against the municipal court. This is probably true. However, the action would not be against the municipal court. It would be against the judge or the clerk of that court. The publications being no longer in custodia legis would be in the hands of the individuals of the court, again, assuming that the publications are not obscene or indecent. Their character in this respect would have to be determined by the court on the trial of the claim and delivery action.

There is nothing in the authorities cited by petitioner contrary to our holding herein. Boland v. Cecil, 65 Cal.App.2d Supp. 832, 150 P.2d 819, dealt with an action brought against the Director of Agriculture and other state officers for a return of meat wrongfully taken and withheld by those officers. The trial court gave judgment for the return of the meat, damages for its retention and in the alternative in case the meat could not be returned, damages for the value thereof. The reviewing court held that so far as both elements of damages were concerned an action against state officers was in effect an action against the state itself, and the state's immmunity to such an action because of its sovereignty also applied to its officers, and hence that portion of the action would not lie. However, the court held that the action did lie for the return of the meat and affirmed that portion of the judgment.

Willis v. Warren, Court of Common Pleas, N. Y., 1859, 1 Hilt. 590, likewise is of no help to petitioner. There the plaintiff brought an action for claim and delivery against the property clerk of the Board of Police Commissioners for the return of certain alleged gambling apparatus and obscene pictures claimed to have been illegally seized. The court recognized the propriety of the form of action, for it examined the circumstances of the seizure and held that the seizure was legal. It then stated that the property was in custodia legis and would so remain until the trial of the charges against the plaintiff. In so doing it stated that as to the gambling devices 'The owner of the property thus held is not without a remedy. He may apply to the court, in which the charge of gambling is pending, for the restoration of the property, or he may urge his trial, and thus acquire it, if the complaint be not established. It is clear, however, that he has no remedy by action against a person holding the property as the custodian of the law, while the charge remains undisposed of:--he must await its determination.' At page 594; emphasis added. As to the lewd pictures the court pointed out at pages...