TOTTON v. SUPERIOR COURT IN AND FOR SOLANO COUNTY

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District Court of Appeal, Third District, California.

TOTTON v. SUPERIOR COURT IN AND FOR SOLANO COUNTY et al.

Civ. 5796.

Decided: December 09, 1936

George A. Work, of San Francisco, for petitioner. Hadsell, Sweet, Ingalls & Lamb, of San Francisco, Russell F. O'Hara, of Vallejo, for respondents.

This cause is before us upon the petition of Diane Totton seeking to restrain the superior court from further proceeding with the hearing of a second motion for nonsuit now pending in the case in said court where Diane Totton is plaintiff and Frank Totton, her husband, is also plaintiff, against Martin Belfrie and Chevrolet Motor Company, defendants. It appears that the Chevrolet Motor Company made a motion for a nonsuit which was denied. Later on the motor company asked permission to renew its motion for nonsuit. Permission was granted. A motion was made for nonsuit by the Chevrolet Motor Company and the time set for argument. In the meantime an alternative writ was sued out from this court seeking to restrain the Superior Court of Solano County and W. T. O'Donnell, as the judge thereof, from proceeding with the hearing of said motion.

The question before us is simply: Have the Superior Court of Solano County and W. T. O'Donnell, as judge thereof, jurisdiction to proceed with the hearing of said motion? This question must be answered in the affirmative. The question has been before the Appellate Court of this state twice and once before the Supreme Court. In the case of Bohn v. Pacific Electric Ry. Co., 5 Cal.App. 622, 91 P. 115, 116, we find the following: “At the close of plaintiff's evidence, defendant moved for a nonsuit, which was denied. Defendant then introduced its evidence and renewed its motion for a nonsuit, which motion the court granted, and judgment was entered for defendant.”

The action of the superior court was upheld. In the case of King v. Hercules Powder Co., 39 Cal.App. 223, 178 P. 531, a motion was made for nonsuit, which was denied. Later on the motion was renewed and granted. The action of the superior court was upheld. In the case of Fox v. Southern Pacific Co., 95 Cal. 234, 30 P. 384, two motions for nonsuit were denied. Finally, the trial court granted a new trial on the ground that it should have granted the second motion for a nonsuit. The action of the trial court was upheld.

It follows, based upon these three cases, that the holding must be that the trial court of Solano county and W. T. O'Donnell, as the judge thereof, have jurisdiction to proceed with the hearing of the motion now pending in the case mentioned. It follows also that the petition for the writ must be and the same is hereby denied. The temporary restraining order is vacated and the proceedings dismissed.

The court delivered the following opinion from the bench: