Opinion
Docket No. 5997.
September 20, 1927.
APPLICATION for Writ of Mandate to be directed to the Superior Court of the City and County of San Francisco and Walter Perry Johnson, Judge thereof, to compel the submission of a cause for decision. Denied.
The facts are stated in the opinion of the court.
Thomas T. Califro for Petitioner.
No appearance for Respondents.
THE COURT.
The application herein for a writ of mandate is denied. [1] Neither the transcript of the minutes of the trial court nor of the entries in the clerk's docket show that said cause was ever ordered submitted for determination and decision. On the contrary it appears from said docket entries and from the files in said cause that on February 28, 1927, which was long after the trial court had directed that the cause be briefed, Sue R. Merriman, one of the defendants in said action, filed an amended answer to the second amended complaint, and on August 27, 1927, filed a notice of motion, after due service of the same on petitioner's attorney, that on September 2, 1927, which was the day on which the writ herein was applied for, she would move said court for an order permitting the filing of an amended answer to the complaint. Whether or not this latter motion related to the amended answer filed on February 28, 1927, is not made clear. However, in view of these latter proceedings, it is evident that the cause has never been under submission for final determination and decision. Therefore the writ applied for will not lie.
A petition for a rehearing of this cause was denied by the district court of appeal on October 19, 1927.