Opinion
On rehearing. Writ denied.
For former opinion, see 233 P. 80.
See, also, 245 P. 814.
Jesse George, of San Diego, for petitioner.
Leon R. Yankwich and Luther Brown, both of Los Angeles, and J. Stewart Ross, Robt. B. Whitelaw, and Chas. L. Brown, all of El Centro, for respondents.
WORKS, J.
This proceeding, along with two others which were companions with it, was treated in the opinion in Hall v. Superior Court (Cal. App.) 233 P. 80. In this matter there were certain conditions of fact which in some material respects differentiated it from the other two. These differences were not made the basis of specific argument in the briefs, but the three proceedings having been briefed together, they were all treated by us as if they were identical in every respect. A petition for rehearing was filed in this matter, in which the differences above mentioned were specified, and the petition was granted. In this opinion upon the rehearing we refer to the facts stated in our former opinion, as far as they are pertinent, making below such additional statement as is necessary.
The present proceeding was different from its companions in these respects: In the cause pending in respondent court, proceedings in which are here sought to be halted, no findings and judgment have yet been signed and filed, and one of respondent judges, but for the pendency of this matter, threatens to make therein findings and render therein judgment adverse to petitioner. It therefore becomes necessary for us now to pay more extended attention to a question which was merely mentioned in our former opinion, the question whether respondent judges are disqualified to act in the cause mentioned.
The alleged disqualification of respondent judges arises from their ownership of lands in respondent irrigation district, which public corporation, as will be noted from the statement of facts contained in our former opinion, is not a party to the action. It is also to be observed that, as stated in the same place, an application for leave to file an amended and supplemental complaint making it a party has been denied by one of respondent judges. This situation meets us at the threshold of any investigation of the question whether respondents are disqualified. Is there any theory upon which the point as to their alleged disqualification may be considered, there being no party to the action in whose welfare or in whose property they have an interest? It appears to us that there is not. To reach a contrary conclusion involves two things: First, it must be determined that respondent court erred in refusing to permit the irrigation district to be made a party; second, we must hold that the error can be reviewed and corrected in this proceeding. As to the second question, laying the first aside, it is the general rule that the writ of prohibition may not be employed for the purpose of reviewing errors of an inferior tribunal, as the purpose of the writ is to prohibit threatened action and not to correct action which is already complete. Traffic Truck Sales Co. v. Justice's Court, 220 P. 306, 192 Cal. 377. It has often been determined, it is true, that where the right to prohibition exists the court will sometimes annul or set aside past orders which stand in the way of complete relief. For instance, it was said in Havemeyer v. Superior Court, 24 P. 121, 138, 84 Cal. 327, 394 (10 L. R. A. 627, 18 Am. St. Rep. 192):
" It [the writ] is primarily and principally preventive,— its office is to arrest proceedings; but when a case arises in which there are proceedings to be stayed or prevented, it will also annul such prior proceedings as may be necessary to make the remedy complete. The principle is that which prevails in equity. When there is jurisdiction, the court will afford complete relief."
Many and later cases might be cited to the same effect, but we know of none which will support the contention of petitioners here. Let us contrast the situation in this proceeding with that supposed in the quotation from the opinion in Havemeyer v. Superior Court. If we were to hold that the order of respondent court refusing leave to bring in the irrigation district as a party was erroneously made, we are asked to correct that error by deciding, in effect, that the new party shall be brought in, are sought to demean ourselves as if in fact it had been brought in, and are upon that foundation requested to declare that respondent judges are disqualified. While it is said in the quotation that the writ " is primarily and principally preventive," we are expected first, or primarily, upon petition for the writ, to administer a corrective, and thereafter, or secondarily, to administer the preventive purely as a resultant from the corrective. It is said, again, that
" When a case arises in which there are proceedings to be stayed or prevented, it [the writ] will also annul such prior proceedings as may be necessary to make the remedy complete."
Here we are asked to annul a prior proceeding to the end that there may thereupon arise or be made apparent a proceeding to be stayed or prevented. We are not in the position of a court of equity, which, after having acquired jurisdiction, will afford complete relief; but it is insisted that we may award a preliminary corrective relief as a foundation for the acquisition of jurisdiction or power to afford the preventive relief which is the usual and ordinary purpose of the writ. We are satisfied that petitioner is not entitled to the ultimate relief which is sought.
The alternative writ of prohibition is vacated, and a peremptory writ is denied.
We concur: FINLAYSON, P. J.; CRAIG, J.