Berg v. Superior Court In and For Los Angeles County
| Decision Date | 02 June 1960 |
| Citation | 181 Cal.App.2d 565,5 Cal.Rptr. 324 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Donald R. BERG, Petitioner, v. SUPERIOR COURT of the State of Callfornia IN AND FOR THE COUNTY OF LOS ANGELES, Respondent. Carol D. Berg, Real Party in Interest. Civ. 24627. |
LeSage & Bowman, Pasadena, for petitioner.
Harold W. Kennedy, County Counsel and Donald K. Byrne, Deputy County Counsel, Los Angeles, for respondent.
Dryer, Hails, Burris & Lagerlof, Los Angeles, for real party in interest.
Petitioner, Donald R. Berg, applies for a writ of prohibition to restrain the respondent court from taking any further proceedings based upon the motion of Carol D. Berg, the real party in interest, for issuance of writ of execution in the sum of $5,097.97, or any other sum, against petitioner based on the interlocutory judgment of divorce in that certain superior court action entitled Carol D. Berg, plaintiff v. Donald R. Berg, defendant, Pasadena No. D-16791.
This motion for issuance of writ of execution came on for hearing, additional evidence was received and the court indicated its intention to issue such writ by a date certain. It is the contention of petitioner that the said court is acting and will act without or in excess of its jurisdiction in ordering issuance of such writ and that he had no plain, speedy and adequate remedy in the ordinary course of the law. Real party in interest contends that the remedy by appeal is adequate. While an appeal might be taken from the order in question, being one made after judgment, no purpose but delay would be served, to the prejudice and expense of the parties, by refusing to decide the jurisdictional question at this time. Under such circumstances as are here shown a writ of prohibition is a proper remedy. Hagan v. Superior Court, 53 Cal.2d 498, 2 Cal.Rptr. 288; City & County of S. F. v. Superior Court, 53 Cal.2d 236, 1 Cal.Rptr. 158; Dell v. Superior Court, 53 Cal.App. 436, 439, 200 P. 85.
For the reasons hereinafter indicated the superior court is without jurisdiction to order issuance of the said writ of execution.
The interlocutory judgment, upon which execution is sought, is one for divorce which incorporated in haec verba a property settlement agreement of the parties. The provisions thereof which Carol contends entitle her to levy writ of execution against petitioner Donald are as follows: The judgment further provided: 'Each party is hereby ordered to carry out the executory provisions of such Property Settlement Agreement.'
It is undisputed by the parties that at all times in question fee title to the Landfair Road residence was in the parents of Donald;...
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...P.2d 692; Corona Unified Hospital District v. Superior Court, 61 Cal.2d 846, 850, 40 Cal.Rptr. 745, 395 P.2d 817; Berg v. Superior Court, 181 Cal.App.2d 565, 5 Cal.Rptr. 324.) We note, also, that in the period of more than 30 days from the time of the Superior Court minute order until the i......
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...in construing the identical language of California Code of Civil Procedure § 682. See Berg v. Superior Court in and for the County of Los Angeles, 181 Cal.App.2d 565, 5 Cal.Rptr. 324, 326 (1960); McKay v. Coca-Cola Bottling Co. of Santa Barbara, 110 Cal.App.2d 672, 243 P.2d 35, 38 Bank of A......
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