Opinion
Rehearing Denied May 16, 1962.
Appeal Dismissed by Stipulation Aug. 29, 1962.
Crandall Condra, San Diego, for plaintiffs and respondents.
Stanley Mosk, Atty. Gen., Charles A. Barrett, Asst. Atty. Gen., Wm. A. Shank, Deputy Atty. Gen., for defendants and appellants.
SHEPARD, Justice.
This is a petition for Writ of Supersedeas and stay of execution pending appeal from 'Order Impounding Personal Property,' motion to dismiss appeal and motion to clarify or correct notice of appeal.
FACTS
The record before us shows that on February 23, 1962, plaintiffs filed in the Superior Court of San Diego County a complaint containing three alternative causes of action against defendants. The first cause in substance alleges the corporate existence and purposes of plaintiff corporation; that each defendant is sued in his individual capacity; that plaintiffs own and are entitled to possession of certain personal property, hereinafter called library (describing generally its contents); that the value of the library is $200,000; that on February 13, 1962 defendants wrongfully took the library from the possession of plaintiffs; that plaintiffs demanded of defendants the return of same and that said demand was refused; that defendants acted maliciously; that defendants threaten to injure or destroy the library to plaintiffs' irreparable injury. The second cause repleads the charging portions of the first cause, and alleges conversion of the library by defendants to plaintiffs' damage in the sum of $200,000. The third cause again alleges the charging portions of the first cause, that defendants claim an interest in the library adverse to plaintiffs and that the claim is without right. The prayer on the first cause is for a receiver or deposit in court and return of the library; on the second cause for $200,000 actual and $50,000 exemplary damage; on the third cause adjudication of title and injunction to prevent removal, examination, transferring, destroying, altering or concealing the library.
On March 1, 1962, the trial court ordered defendants to show cause on March 9, 1962 why a receiver of said library should not be appointed and why an injunction as prayed for in the complaint should not be ordered; in the alternative, why the library should not be ordered returned to plaintiffs; in the alternative, why the library should not be ordered deposited with the clerk of the court for safekeeping. In the same order a temporary restraining order was made as prayed for.
On March 8, 1962, other parties plaintiff and defendant were added to the complaint. On March 9, 1962, by leave, plaintiffs filed an amended complaint adding a fourth and a fifth cause of action. The fourth cause repleads the charging portions of the first and second causes and alleges the acts were done by defendants under color of their respective offices but that the acts were ultra vires. The fifth cause repleads the necessary charging portions of the first cause and alleges that defendants claim an interest in the library in their individual and official capacities but that the claim is without right.
On March 9, 1962, the matter was heard on written declarations, documentary and oral evidence. In substance the evidence shows that plaintiff corporation is a nonprofit organization formed for the purpose of collecting and disseminating information concerning persons and organizations engaged in activities subversive of the principles of the Constitution of the United The evidence regarding the presence within the library of fingerprints and personnel cards of members of the California National Guard and the National Guard Reserve and of military photographs and other strictly military data is not clear. General Fisher, the only witness called to testify, knew nothing of their being with the library. For brevity we will hereinafter refer to such material as National Guard property since no contention is raised between the parties as to that portion of the property. All of the library, along with the National Guard property, was, on February 13, 1962, taken into the exclusive custody of defendants and moved to the city of Sacramento, where it now is.
On March 9, 1962, the Superior Court made its order that the library be placed in the custody of the clerk of that court to await the outcome of the litigation and included a prohibitory injunction in accord with the prayer of the complaint. By a nunc pro tunc order dated March 16, 1962, all defendants were named in their official as well as their individual capacities and all property identified by the evidence as National Guard property was excluded from operation of the order. Defendants have appealed and have petitioned this court for a writ of supersedeas and to stay execution of the order.
SUPERSEDEAS
The writ of supersedeas is a writ sometimes granted in aid of the appellate jurisdiction of the supreme and appellate courts under authority of Sections 4 and 4b of Article VI of the California Constitution. (Private Investors v. Homestake Mining Co., 11 Cal.App.2d 488, 492, 54 P.2d 535; Rosenfeld v. Miller, 216 Cal. 560, 562-563[1-2], 15 P.2d 161.)
A writ of supersedeas is not a matter of right but it is issued in aid of appellate jurisdiction only when the appellate court, from the record before it, believes such action is 'necessary or proper to the complete exercise of its appellate jurisdiction.' (Food & Grocery Bureau of Southern California v. Garfield, 18 Cal.2d 174, 177, 114 P.2d 579; see also City of Pasadena v. City of Alhambra, 75 Cal.App.2d 91, 98, 170 P.2d 499; West Coast, etc., Co. v. Contractors', etc., Bd., 68 Cal.App.2d 1, 5-6, 155 P.2d 863; Rubin v. American Sportsmen, etc., Soc., 102 Cal.App.2d 288, 291, 227 P.2d 303.)
Its issuance is not dependent on the 'balancing of conveniences or hardships,' but rather, 'upon a consideration of the respective rights of the litigants, which contemplates the possibility of the affirmance of the decree as well as of a reversal.' (Food & Grocery Bureau of Southern California v. Garfield, supra, 18 Cal.2d 177, 114 P.2d 581.) To justify the issuance Dry Cleaners & Dyers Institute of San Francisco & Bay Counties v. Reiss,
Hulbert v. California, etc., Cement Co., Ohaver v. Fenech, West Coast, etc., Co. v. Contractors', etc., Bd., Private Investors v. Homestake Mining Co., Alhambra Shumway Mines v. Alhambra Gold Mine Corp., Yee Kee Chong v. Pacific Freight Lines,Viewing the record with these principles in mind it is difficult to perceive any logical reason why supersedeas is needed in the present case. Accepting, without deciding, defendants' contention that the order is an order for a receiver, still no contention is made nor evidence offered by defendants that any serious harm will result to defendants if the order is carried out. All property identified as clearly belonging to the state has been excluded from the order. If other property clearly belonging to the state is in the library and is pointed out to the trial court, it also will doubtless be released as the trial court has already evinced such intention; if a more thorough examination is desired for that purpose, the trial court has provided a way to secure such examination.
Furthermore, it clearly appears that most or possibly all the witnesses necessary to the ultimate determination of the issues reside in the vicinity of San Diego; that the library was all accumulated in the San Diego area and that the purpose of the order is to preserve in status quo, as nearly as possible, the rights of the parties as they stood before the library was admittedly taken from that vicinity. In addition, it would appear probable that, in the trial of the cause on its merits, the files of the library will be needed in connection with testimony identifying ownership. We can find no equitable or factual circumstance in the record to justify the issuance of the writ.
Plaintiff has moved dismissal of the appeal on the ground that the order is not appealable. From the record before us and in consideration of the sharply conflicting contentions of the parties as to the meaning of the order, it appears that the decision of such motion requires a consideration of the appeal on its merits. (Estate of Wunderle, 30 Cal.2d 274, 279, 181 P.2d 874.)
The Attorney General has made a motion to delete the name of Hugo M. Fisher individually and Hugo M. Fisher as Senator of the State of California from the appealing defendants named in the Notice of Appeal. The affidavit in support thereof, in effect, sets forth that the name was inserted as an appealing defendant inadvertently and without authority of said defendant. It further appears that Fisher was not named in the order from which appeal was taken. Therefore, it is apparent that there was no order against Fisher and nothing from which he could appeal. The purported appeal by Fisher should, in order to clarify the record, be dismissed.
In view of the foregoing, discussion at this time of other points raised by the parties is unnecessary.
The petition for a writ of supersedeas is denied and this court's temporary restraining order is dissolved. The motion to dismiss appeal is denied, without prejudice. The purported appeal by Hugo M. Fisher individually and as Senator of the State of California is dismissed.
GRIFFIN, P.J., and COUGHLIN, J., concur.