The writ was denied. Chester v. Colby, 52 Cal. 516, in which a demurrer raising the jurisdictional point was pending and undetermined, is to the same effect. In neither case had the lower court taken any action in the cause at the time prohibition was sought; it was simply considering whether or not it had jurisdiction to act.
The writ should also be denied because the very question of fact raised before this court on this application had already been submitted to the trial court. (Chester v. Colby , 52 Cal. 516.) Scrivner & Schell, and Wheaton, Kalloch & Kierce, for Petitioner.
The court having jurisdiction to appoint a receiver, no irregularity in the appointment can be considered upon prohibition. (People v. Supervisors , 47 Cal. 81; People v. Whitney , 47 Cal. 584; Chester v. Colby , 52 Cal. 516; Bandy v. Ransom , 54 Cal. 87; Clark v. Superior Court , 55 Cal. 199; Wreden v. Superior Court , 55 Cal. 504; Coker v. Superior Court , 58 Cal. 178; Hedges v. Superior Court , 67 Cal. 405; Ah Goon v. Superior Court , 61 Cal. 555.) When duly appointed receiver, he became a ministerial officer.
[10] The court answers this question as follows: "This question must be answered in the negative. The law is settled that, if the question of the jurisdiction of an inferior court has been raised by an appropriate objection, an appellate court will not issue a writ of prohibition to restrain further proceedings in the lower court until the inferior court has ruled upon the question which has been presented for its determination. ( Chester v. Colby, 52 Cal. 516, 517; 21 Cal.Jur. (1925) 628; 50 Cor.Jur. (1930) 697.)" To the same effect see Sayegh v. Superior Court, 44 Cal.2d 814, 815 [ 285 P.2d 267]; Baird v. Superior Court, 204 Cal. 408, 415 [267 P. 640]; Heinecke v. Superior Court, 27 Cal.App.2d 480, 482 [ 81 P.2d 179].
This question must be answered in the negative. The law is settled that, if the question of the jurisdiction of an inferior court has been raised by an appropriate objection, an appellate court will not issue a writ of prohibition to restrain further proceedings in the lower court until the inferior court has ruled upon the question which has been presented for its determination. ( Chester v. Colby, 52 Cal. 516, 517; 21 Cal. Jur. (1925) 628; 50 Cor. Jur. (1930) 697.) For the foregoing reasons the application for a writ of prohibition is denied and the alternative writ heretofore issued is discharged.
[2] So far as the contempt proceeding against petitioner is concerned the petition does not show that he has in any way called the attention of the court below to his claim that such court is acting in such proceeding without jurisdiction by reason of the alleged invalidity of the orders appointing said receiver, and the authorities hold that the remedy in such a case is for petitioner to first present his defense to the lower court upon the hearing of the contempt proceeding. ( Wessels v. Superior Court, 200 Cal. 403 [ 253 P. 135]; Southern Pac. R. Co. v. Superior Court, 59 Cal. 471, 475; Chester v. Colby, 52 Cal. 516. ) The Supreme Court in the case of Commercial Bank v. Superior Court, 192 Cal. 395, 397 [ 220 P. 422, 423], in laying down the rule above mentioned also uses the following language: "However, the trial of contempt proceedings has sometimes been stayed by a writ of prohibition where it is manifest from previous orders or decisions of the court that it will proceed notwithstanding a lack of jurisdiction."