Opinion
Application for an order restraining the prosecution of an action.
COUNSEL:
Whittemore & Sears, for Appellant, cited Code Civ. Proc., secs. 939, 941, 946, 949; McCourtney v. Fortune , 42 Cal. 390; Regan v. McMahon , 43 Cal. 627; Stechham v. Roraback , 67 Cal. 30; Murray v. Green , 64 Cal. 368; Covarrubias v. Santa Barbara , 52 Cal. 622; McFadden v. O'Donnell , 18 Cal. 160; Const., art. 6, sec. 4.
Roger Johnson, and F. W. Van Reynegom, for Respondents.
JUDGES: In Bank. Sharpstein, J. Searls, C. J., Thornton, J., and McFarland, J., concurred. Paterson, J., concurring.
OPINION
SHARPSTEIN, Judge
Application for an order restraining the further prosecution of an action entitled P. H. Andross v. Grove Adams et al . 484 The facts are as follows:
On November 18, 1887, William Adams commenced an action to restrain the sale of certain real estate by the sheriff of San Diego County in the action of P. H. Andross v. E. P. Gray, and on that day obtained a restraining order, and an order to show cause why an injunction should not issue.
On the granting of said restraining order, William Adams gave a bond, with said Grove Adams and C. S. Boise as sureties, in the sum of five hundred dollars, to the effect that the said William Adams would pay to said Andross et al. such damages as he might sustain if said court should finally decide that said William Adams was not entitled to said restraining order.
On December 18, 1887, said restraining order was vacated, and the application for an injunction denied.
On the 13th of February, 1888, said William Adams appealed from said order to this court, and executed an undertaking on appeal. Said appeal is now pending in this court.
On April 20, 1888, the action of Adams v. Andross was dismissed by the court in which it was pending, and on April 26, 1888, Andross commenced an action upon the bond given on the issuing of said restraining order, and we are now asked for an order staying further prosecution of that action until the appeal pending here is finally disposed of.
We are not satisfied that the power to issue such an order has been conferred upon this court, and therefore must decline to issue it.
Application denied.
CONCUR
PATERSON
Paterson, J., concurring. I concur. The petition shows that a motion for a new trial is pending in the superior court. If the evidence given at the trial shows that it has not been finally decided that the plaintiff in the injunction suit was not entitled to the injunction (Code Civ. Proc., sec. 529), I presume the court will grant the motion, and hold that the suit on the undertaking was prematurely brought.