Branker v. Superior Court In and For Riverside County

• Decision Date: 09 December 1958
• Citation: 332 P.2d 711,165 Cal.App.2d 816
• Court: California Court of Appeals Court of Appeals
• Parties: Sol BRANKER, Sam Branker and Leo Branker, and Sam and Leo Branker, Doing Business as Branker Bros., Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR The COUNTY OF RIVERSIDE (Roy E. Smith, Real Party in Interest), Respondent. Civ. 5933.

Page 711

332 P.2d 711

165 Cal.App.2d 816

Sol BRANKER, Sam Branker and Leo Branker, and Sam and Leo Branker, Doing Business as Branker Bros., Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR The COUNTY OF RIVERSIDE (Roy E. Smith, Real Party in Interest), Respondent.

Civ. 5933.

District Court of Appeal, Fourth District, California.

Dec. 9, 1958.

Gabriel Hoffenberg, Los Angeles, for petitioners.

Thompson & Colegate and H. L. Thompson, Riverside, for respondent.

MUSSELL, Justice.

Petitioners herein seek a writ of mandate requiring the Superior Court of the State of California, in and for the County of Riverside, to hear and determine on its merits a motion to dissolve an injunction pendente lite in an action pending in said court entitled Roy E. Smith, Plaintiff, v. Sol Branker, et al., Defendants, case number 67463.

On February 18, 1958, the superior court entered a temporary restraining order in said action and on said date issued an order to show cause why a temporary injunction should not be issued restraining the defendants, pending the trial of the action on its merits, from doing any of the acts set forth in the restraining order issued. The order to show cause was heard and submitted and, on March 27, 1958, the court issued an injunction pendente lite ordering '* * * [t]hat pending the trial of the above entitled action on its merits, and until final disposition thereof, the defendants Sol Branker, Sam Branker, Leo Branker individually, and Sol Branker, Sam Branker and Leo Branker, doing business as Branker Bros., Western Cattle Feeders, a corporation, Western Cattle Feeders, a corporation, doing business under the name and style of B-W Cattle Co. and Eugene Melinkoff, and each of them, be and they are, and each of them is hereby enjoined from paying to, delivering to, depositing for, or in any manner placing in the hands of the defendants, Sol Branker, Sam Branker, or Leo Branker or either of them, individually or as co-partners doing business under the name and style of Branker Bros., or in the hands of their agents or employees, any net profit or profits earned or acquired from the sale or disposal of any of the steers now being fed, handled, processed or sold for or on behalf of said defendants Branker, or any or either of them. * * *' The temporary injunction was denied as to the Bank of America National Trust and Savings Association.

On March 26, 1958, prtitioners filed a verified answer and counterclaim. On May 1, 1958, the defendant Western Cattle Feeders corporation filed its answer, and on May 7, 1958, answer was filed by defendant Eugene Melinkoff. On May 16, 1956, petitioners herein filed and served a notice of motion to dissolve the injunction pendente lite. In the affidavit of Gabriel Hoffenberg, filed in support of the motion, certain matters were set forth which occurred after the granting of the injunction pendente lite. Other affidavits in support of the motion were filed by defendant Sol Branker and by Jacob G. Efron.

On May 29, 1958, at the time set for the hearing of the motion of petitioners, counsel for the respondent Roy E. Smith objected to the hearing of said motion to dissolve the injunction pendente lite on the ground that the court did not have jurisdiction to dissolve or modify it, and on June 2, 1958, the trial court entered the following minute order: 'Ruling on motion to dissolve injunction pendente lite. Plaintiff's objection to the hearing of defendants' motion to dissolve injunction pendente lite is sustained.'

Petitioners herein did not appeal from the order of March 27, 1958, granting the injunction pendente lite and on June 20, 1958, filed their petition for a writ of mandate herein to compel the trial court to hear and determine on its merits their motion to dissolve the injunction.

In Robinson v. Superior Court, 35 Cal.2d 379, 383, 218 P.2d 10, 13, the court said:

'The law is well settled that a trial court is under a duty to hear and determine the merits of all matters properly before it which are within its jurisdiction and that mandate may be used to compel the performance of this duty. This is so even where the trial court's refusal to pass on the merits is based on the considered but erroneous belief that it has no jurisdiction as a matter of law to grant the relief requested. As stated in Temple v. Superior Court, 70 Cal. 211, 212, 11 P. 699, 'the court cannot, by holding without reason that it has no jurisdiction of the proceeding, divest itself of jurisdiction, and evade the duty of hearing and determining it.' Mandate will issue to compel a hearing and determination of the merits where the court has merely sustained an objection on jurisdictional grounds and left the proceeding pending. Lissner v. Superior Court, 23 Cal.2d 711, 146 P.2d 232; Miller v. Municipal Court, 22 Cal.2d 818, 142 P.2d 297; Conklin...