Rosicrucian Fellowship v. Superior Court

THE ROSICRUCIAN FELLOWSHIP (a Corporation), Petitioner, v. SUPERIOR COURT OF SAN DIEGO COUNTY et al., Respondents.

COUNSEL

Elmer J. Walther for Petitioner.

Thomas Whelan, District Attorney, and Stewart, Shaw & Murphy for Respondent.

OPINION

THE COURT

Petitioner is here asking for a writ of mandate directed to the respondent court to command it to take a certain action in a case in which an injunction was issued. It is an equitable action in which original appellate jurisdiction is in the Supreme Court. Petitioner states in its petition that the appeal from the judgment is now pending in that court.

[1] The rule generally followed in this state is that where a writ is sought in a case pending on appeal the petition [73 Cal. App. 2d 825] should be filed in the court in which the appeal is pending. (See, Collins v. Superior Court, 147 Cal. 264 [81 P. 509]; Estate of Turner, 39 Cal. App. 56 [177 P. 854]; Gunder v. Superior Court, 100 Cal. App. 334 [279 P. 822]; Foster v. Superior Court, 4 Cal. App. 2d 466 [41 P.2d 187]; Waidley v. Superior Court, 51 Cal. App. 2d 690 [125 P.2d 507].) It follows that the application for the writ should have been made to the Supreme Court.

The petition is denied without prejudice to applying for the writ in the proper court.