LOEW v. SUPERIOR COURT COUNTY OF LOS ANGELES

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District Court of Appeal, Second District, Division 1, California.

LOEW'S Incorporated, a corporation, Petitioner, v. The SUPERIOR COURT of the State of California, in and For the COUNTY OF LOS ANGELES, Respondent.*

Civ. 21851.

Decided: September 05, 1956

Loeb & Loeb, John L. Cole, Alfred I. Rothman, Laurence M. Weinberg, Los Angeles, for petitioner. Hugo A. Steinmeyer, Robert H. Fabian, W. H. Taylor, Jr., Los Angeles, for real party in interest, Bank of America Nat. Trust & Savings Ass'n.

Petitioner, Loew's Incorporated, seeks a writ of mandate requiring the Superior Court of Los Angeles County to set aside and vacate its order of June 6, 1956, ‘* * * that the motion of plaintiff (Bank of America) for a stay of injunction pending appeal be granted and that the operation and effect of that certain judgment heretofore entered in the above-entitled action on the 4th of April 1956 in Book 3070 at page 292 of Judgments in the Office of the County Clerk of Los Angeles County, California, be stayed pending the final determination of the appeal therefrom and 30 days thereafter and that the status quo shall be preserved during that period.’

The petition seeking to prohibit the making of that order was filed herein on June 6, and on June 8 after the making of said order a supplementary petition seeking mandate in lieu of prohibition was filed.

The judgment so ‘stayed’ was made in an action commenced by the Bank of America to quiet its title to certain personal property, and provides as follows:

‘It Is Ordered, Adjudged and Decreed:

‘1. Except as hereinafter otherwise specified in paragraphs 3 to 8, both inclusive, plaintiff, Bank of America National Trust and Savings Association, a national banking association, is the owner of the following described personal property, free and clear of all claims and demands whatsoever;

‘All properties of every kind and character relating to the feature-length motion picture photoplay entitled ‘Mr. Peabody and the Mermaid’, hereinafter in this paragraph 1 called the ‘Picture’, based upon a story by Guy Jones and Constance Jones and a screenplay by Nunnally Johnson, having as principal players William Powell and Ann Blyth, and which was produced by Inter-John, Incorporated, including, but without limiting the foregoing general language, the following:

‘(a) All of the literary, musical dramatic and other material upon which * * *

‘(b) All physical properties of the picture * * *

‘(c) To the extent necessary to complete the picture, all assignable rights * * *

‘(d) All insurance * * *

‘(e) All copyrights * * *

‘(f) The right to exploit * * *

‘(g) All rent, revenue, income, compensation and profits * * *

‘2. * * *

‘3. Plaintiff may not advertise or announce William Powell's name in general advertising or publicity * * *

‘4. Plaintiff may not use William Powell's name or likeness in or in connection with any so-called ‘commercial tie-ups' * * *

‘5. Plaintiff may not cause or permit to be made or issued 16mm. or other non-standard prints of said motion picture except * * *

‘6. Plaintiff shall give credit to William Powell as a star or co-star on all positive prints * * *

‘7. Plaintiff may not double or ‘dub’ (as that term is understood in the motion picture industry) any of William Powell's acts, poses, plays or appearances, or his voice, either in English or in any foreign language or languages, unless * * *

‘8. Plaintiff, its successors and assigns, are hereby enjoined, for the benefit of Loew's, its successors and assigns, from doing any act prohibited by any of the provisions of the foregoing paragraphs 3 to 7, both inclusive, and are ordered and directed, for the benefit of Loew's, its successors and assigns, to perform and observe the provisions of said paragraphs 3 to 7, both inclusive * * *

‘9. * * *

‘10. Except for and subject to the rights of Loew's arising out of the provisions of paragraphs 3 to 8, both inclusive, Loew's, and all persons claiming by, through or under it, are hereby perpetually enjoined and restrained from asserting any claim or demand whatsoever in, to or on the rights and properties described in paragraph 1, or any part thereof, or the proceeds derived therefrom, adverse to plaintiff.’

In said quiet title action, trial upon the merits was completed, and the facts contained in the following summary were found true.

On and after January 20, 1948, Inter-John, Incorporated, a corporation, borrowed money from the Bank and gave a promissory note therefor, secured by a chattel mortgage upon the properties described in the judgment. Inter-John failed to pay off a portion of the loan and, pursuant to the chattel mortgage, the properties were sold at public sale and purchased by the Bank, which then commenced the instant action to quiet its title to said properties.

Inter-John's ownership of the properties so mortgaged by it and sold to the Bank was subject to the terms of a ‘loan-out agreement’ between Loew's and Universal, and written instruments executed by Loew's, Universal and Inter-John in 1947. Under said contracts Inter-John had no right to do any of the things covered by the injunctive provisions of the judgment hereinbefore set forth.

From 1934 until 1953 Loew's and its predecessor, Metro-Goldwyn Mayer Corporation, had a contract with William Powell for all his services and were the owners of all the results and proceeds thereof. Large sums of money had been invested by them in building and maintaining his reputation and the value of the pictures in which he appears.

‘The restrictive provisions * * * were included in the loan-out agreement for the purpose of protecting Loew's property rights in the services and performances of William Powell and in the results and proceeds thereof and for the purpose of protecting Loew's investment in Motion Pictures produced and to be produced by it in which William Powell appears.’

Loew's had no knowledge of Inter-John's dealings with the Bank, but the Bank's representative knew of the loan-out agreement and the restrictions for the protection of Loew's investment therein contained.

Proposed findings, conclusions and judgment were served by mail on March 20, 1956 and dated and signed March 30, 1956, and the judgment was entered April 4, 1956. On or about April 6, 1956, petitioner duly served and filed notice of entry of said judgment.

The Bank's motion for a new trial was duly heard, considered and denied by order made and entered May 9, 1956. On May 22nd the Bank filed its notice of motion for reconsideration of order denying new trial, and on May 29, 1956, so moved.

Contemporaneously with its notice and motion for reconsideration of order denying plaintiff's motion for new trial, the Bank filed a notice of motion for ‘Stay of Injunction Pending Appeal’, and so moved.

A minute order was made June 4 and entered June 7, 1956, reading as follows: ‘Motion for reconsideration of order denying plaintiff's motion of new trial denied. Motion for stay of injunction pending appeal granted’.

On June 6, 1956, the court made the order first hereinbefore quoted that the Bank's motion ‘for a stay of injunction pending appeal be granted’, which order is sought to be vacated by this proceeding. On the same day the Bank appealed from the judgment. The real effect of the order is to modify the judgment so as to grant an injunction effective 30 days after the final determination of the appeal from the judgment, instead of the injunction included in the judgment effective from the date of the judgment. Said order of June 6 is ‘a special order after final judgment’ and is ‘appealable regardless of whether it is void and regardless of whether it is provided for by any of the prescribed methods of procedure’. Phelan v. Superior Court, 35 Cal.2d 363, 370, 217 P.2d 951.

The Phelan case, supra, is not authority for the Bank's statement that an appeal furnishes a plain, speedy and adequate remedy in lieu of the relief sought by the instant proceeding. In the Phelan case, the order, made after a final judgment for money, reduced the amount of money. The order, from the consequences of which petitioner seeks relief in the instant proceeding, is in effect an order that—although the Bank has no right to do certain things as already adjudged after a complete trial upon the merits—the Bank shall, nevertheless, not be restrained from doing those things until 30 days after the judgment shall have become final. Under the facts of the instant action, an appeal from the order ‘staying * * * the operation and effect of’ the judgment could not preserve petitioner's rights under the judgment; and, in the event the judgment in favor of petitioner should be affirmed on appeal, the acts prohibited by the judgment might already have been done, so that, even if the Bank loses its appeal, the judgment could accomplish nothing except to quiet the Bank's title to the moving picture properties without regard to the limitations subject to which the Bank acquired the properties.

The Bank, in its answer, urges that ‘* * * respondent superior court, having exercised its discretion to issue the order staying the injunctive provisions of the judgment, its act is not reviewable on mandamus', and in that regard cites the following cases: Hilmer v. Superior Court, 220 Cal. 71, 73, 29 P.2d 175; Lincoln v. Superior Court, 22 Cal.2d 304, 313, 139 P.2d 13; O'Bryan v. Superior Court, 18 Cal.2d 490, 496, 116 P.2d 49, 136 A.L.R. 595; Bauer v. Superior Court, 208 Cal. 193, 198, 281 P. 61; Kerr v. Superior Court, 130 Cal. 183, 185, 62 P. 479; People ex rel. Gesford v. Superior Court, 114 Cal. 466, 471, 46 P. 383; Friedland v. Superior Court, 67 Cal.App.2d 619, 623, 155 P.2d 90; Parker v. Superior Court, 16 Cal.App.2d 580, 583, 60 P.2d 1021; Greene v. Superior Court, 133 Cal.App. 35, 38, 23 P.2d 785.

An examination of these cases discloses that many of them stem, directly or indirectly, from Strong v. Grant, 99 Cal. 100, 101, 33 P. 733, 734, decided in 1893, wherein it was said: ‘The rule is so well established that it may be said to be universal that the writ of mandamus cannot be used to correct the errors of a court in passing upon questions regularly submitted to it in the course of a judicial proceeding, or to control the exercise of its discretion.’

However, in the Matter of Ford, 1911, 160 Cal. 334, 346, 347–348, 116 P. 757, 761, 35 L.R.A.,N.S., 882, it is said: ‘* * * And, while the general rule announced in Strong v. Grant, that a writ of mandate cannot be issued to correct the errors of a court in passing upon questions regularly submitted to it in the course of judicial proceedings or to control the exercise of its discretion undoubtedly obtains, it is not universally true that such writ will not issue to control such discretion or to require a judicial tribunal to which a matter for determination is submitted, to act in a particular way. * * *

‘* * * ‘Otherwise there would be an admitted wrong without a remedy. The writ issues in such case to prevent a failure of justice. And this is its ancient office. In the language of Lord Mansfield: ‘It was introduced to prevent disorder from a failure of justice and defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy, and where, in justice and good government, there ought to be one.’ * * *''

Each of the cases cited by the Bank in this regard is based upon the holding of Strong v. Grant, supra, or is distinguishable from the instant action. It would serve no useful purpose to consider them in detail here.

In Robinson v. Superior Court, 1950, 35 Cal.2d 379, 218 P.2d 10, 13, it appeared that a motion ‘was denied on the sole ground of lack of jurisdiction’, and it was held that ‘if the effect is to preclude a hearing and judgment on the merits of a matter properly before the court, and there is no other adequate remedy, mandate will lie to test the question of jurisdiction. * * * a denial of relief on the sole ground of lack of jurisdiction is not a decision on the merits. * * *’

In the instant action there was a decision on the merits, and then an order nullifying that decision. The parties to an action are entitled to more than a trial on the merits; they are entitled to the relief accorded them by law. In the instant action, the trial court found petitioner entitled to injunctive relief, made its judgment accordingly, and denied the Bank's motion for a new trial.

The Bank's motion for the stay of judgment pending appeal was based upon the fact that it is a national bank, and its claim that no court of the State of California has the power to enjoin a National Bank in any respect whatsoever, and that the Bank cannot be subjected to any injunction, prior to the completion of the last appeal and the finality of the judgment. No other reason has been given, and we have been able to find none, for the trial court's order staying the effect of its judgment pending appeal.

If, as found by the court, the Bank's ownership of the motion picture properties is subject to certain limitations, certainly it would not preserve the status quo pending appeal to permit the Bank to do the very acts which it has no right to do, among them the manufacture of non-standard films and the sale and use of them for advertising purposes. Since it was found by the court that exceptions and limitations had been included in the agreements for the purpose of maintaining the value of pictures made and to be made starring William Powell, it cannot be presumed that such acts during the pendency of the appeal will not render the judgment worthless in the event it is eventually affirmed.

In support of its contention that the superior court had no power to issue an injunction against it, and that, therefore, the order staying said injunctive provisions of the judgment, is correct and should not be interfered with by this court, the Bank sets forth the following argument: ‘The pertinent provision of Section 91 of Title 12 of the United States Code [Annotated] reads as follows:

“* * * (N)o attachment, injunction, or execution shall be issued against such (national banking) association or its property before final judgment in any suit, action, or proceeding, in any state, county, or municipal court.'

‘It is respectfully submitted that the statute means just what it says, and the courts have so found.’

An examination of the last cited statute, however, brings to light the fact that the language quoted is immediately preceded by the portion of the section here quoted, as follows:

‘§ 91. Transfers by bank and other acts in contemplation of insolvency. All transfers * * * made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, * * * shall be utterly null and void; and no attachment, injunction, * * *.’

Despite the apparent intent of Congress as expressed in the statute, it has been held that Section 91 is for the protection of every national banking association, either solvent or insolvent. Pacific National Bank of Boston v. Mixter, 124 U.S. 721, 8 S.Ct. 718, 31 L.Ed. 567; Van Reed v. People's National Bank, 198 U.S. 554, 559, 25 S.Ct. 775, 49 L.Ed. 1161; Dennis v. First National Bank of Seattle, 127 Cal. 453, 454, 59 P. 777.

Each of the last above cited cases and others to which we have been referred involves an attachment before trial or other provisional remedy, while the instant proceeding concerns a prohibitory injunction after a complete trial upon the merits.

The question as to the error of the judgment in the instant action will, no doubt, be determined upon the Bank's appeal from the judgment now pending. Assuming, but not deciding, that the decisions last above cited are here controlling, the trial court was, nevertheless, authorized to ‘stay the operation and effect’ of the judgment, or to correct judicial error therein, only in accordance with statutory procedure. Stevens v. Superior Court, 7 Cal.2d 110, 112–114, 59 P.2d 988. In the Stevens case, supra, a writ of prohibition issued to restrain the superior court from proceeding with a new trial after motion therefor had been denied, the order denying the motion for new trial had been set aside and vacated, and an order granting a new trial had been made some three weeks later. It was there held that the order denying the new trial was judicial and not a clerical error, and could not be corrected by the trial court in that manner.

In the instant action, an order denying a new trial was made four weeks before the stay of injunction was granted.

The bank's contention is that by its order ‘staying the injunctive provisions of the judgment’ the court was not in any manner attempting to set aside or amend judicial error or to modify or vacate the injunction; that ‘all the superior court did was exercise its inherent power to stay the injunctive provisions of a judgment previously made’. In support of this proposition, the Bank cites Tulare Irrigation District v. Superior Court, 197 Cal. 649, 660, 668, 671, 672, 242 P. 725; and City of San Diego v. Southern California Telephone Corp., 42 Cal.2d 110, 120, 266 P.2d 14.

In the Tulare case, supra, a writ of prohibition sought to prevent a stay of injunction was denied. There, the superior court made its findings and conclusions that the Lindsay-Strathmore Irrigation District should be permanently enjoined from pumping water from its land in the Tulare watershed to irrigate producing citrus groves outside of that watershed; that the owners of those groves would lose almost their entire value if and when their use of the water were so enjoined; and the superior court notified the parties that, because of defendant's intention to diligently and in good faith prosecute an appeal from the judgment to be made, and because without a stay of the injunction any appeal by defendant would be entirely nugatory and valueless, as a part of the judgment or concurrently therewith, the superior court would stay the effective date of said injunction pending final determination on appeal, and that ‘in making the contemplated order he intends to impose upon the defendant and appellant such terms and conditions as to him may seem just and equitable, and that such terms and conditions will, in his judgment, provide adequate security for compensating the complainants on account of any damage or loss * * *.’ [197 Cal. 649, 242 P. 735.]

City of San Diego v. Southern California Tel. Corp., 42 Cal.2d 110, 266 P.2d 14, 21, is an appeal from a judgment for the amount determined to be due the City from the Telephone Company for a new franchise as provided by a judgment which had become final after appeal, 92 Cal.App.2d 793, 208 P.2d 27. On appeal, the amount determined by the superior court was held erroneous and the judgment reversed. The judgment which had already become final (from which the computation of the amount required as a prerequisite for a new franchise was to be made) ‘did not issue an injunction and thereafter stay its effect pending appeal. Instead, it provided that the injunction would not take effect until thirty days after the judgment became final. Until that time, there was nothing to be stayed. * * *’

At page 120 of 42 Cal.2d, at page 21 of 266 P.2d in the City of San Diego v. Southern, supra, the court said: ‘Since the judgment was affirmed on the previous appeal, the City is foreclosed from challenging the conditions attached to issuance of the injunction. * * * Aside from the rights of the company, it was clearly in the public interest that the trial court withhold issuance of an injunction and thus assure continued telephone service pending outcome of the appeal. * * *

‘* * * The judgment did not give either the City or the company more or less rights in the interim than either had had under the expired franchise.

‘The City contends that the trial court did not have power to stay its injunction unless * * *. A trial court is not so limited. It may protect the parties on appeal by providing that its injunction or order is stayed, under conditions that protect the appellant by preserving the subject matter of the appeal pending outcome thereof and at the same time protect the respondent by saving to it the benefits of the judgment in the event of an affirmance.’

The Tulare and San Diego cases, supra, involved injunctions which by the provisions of the judgments themselves were not to become effective until a later date, and in each of those cases the trial court had found that, unless the effect of the injunction were so delayed, in the event of a reversal on appeal, the appellant's victory would be valueless. In each, the trial court also provided protection for respondent in the event of an affirmance.

In the instant action, there is no finding that the fruits of success on the appeal will be lost to appellant by permitting the injunction to become immediately effective as provided in the judgment, and no protection is provided for respondent's rights in the event of an affirmance. From the record in the instant proceeding it appears that the only ground suggested by the Bank for the order ‘staying the injunction’ until ‘30 days after the judgment shall become final’ is that ‘the plaintiff is a national banking association and no injunction will lie against it until after final judgment’.

Clearly the cited cases are not applicable to the question here presented and no decisions in point have been found by our independent research.

We are in accord with the contention of the real party in interest, the Bank, that cases concerning the trial court's power to ‘set aside or amend judicial error or at least modify and vacate the injunction are not applicable’ because the Bank concedes that its petition for a stay could not have been granted under the statutory provisions for modification of a judgment upon motion for a new trial or upon motion to set it aside for mistake or inadvertence. Therefore, we will not here discuss the cases cited by petitioner to that effect.

Because we regard the following cases as helpful in the determination of the issues with which we are here confronted, we shall discuss them:

Sontag Chain Stores Co., Ltd. v. Superior Court, 18 Cal.2d 92, 113 P.2d 689, was a proceeding in prohibition to restrain the Superior Court from entertaining a motion to vacate a judgment. That judgment ‘permanently enjoined the defendant labor unions from picketing or creating any disturbance in the vicinity of petitioner's stores'. It had become final several months before the motion to vacate it was made upon the ground that the trial court ‘did not correctly apply the law to the facts then before it’. Petitioner there seeking prohibition asserted ‘that the decree in controversy cannot be set aside for mere judicial error, error of law, or change of decision. * * *’ At page 94 of 18 Cal.2d at page 690 of 113 P.2d, Mr. Justice Edmonds, speaking for the court, said:

‘As a declaration of the general rule, petitioner's statement is correct. It is well settled that a final judgment of a court of competent jurisdiction may not be impeached collaterally for mere errors or irregularities committed by the court in the exercise of its jurisdiction or in the course of the proceedings, even though the error is one of law, and appears on the face of the record. * * * The reason for the rule is that there must be an end to litigation, and hence it is the long established policy of the law to, so far as possible, prohibit the further contest of an issue once judicially decided and to accord finality to judgments.

‘But the reason for the rule ceases and the rule fails to apply in the case of a preventive injunction of the type here under review. This is so because the decree, although purporting on its face to the permanent, is in essence of an executory or continuing nature, creating no right but merely assuming to protect a right from unlawful and injurious interference. Such a decree, it has uniformly been held, is always subject, upon a proper showing, to modification or dissolution by the court which rendered it. The court's power in this respect is an inherent one. Its action is determined by the facts and circumstances of each particular case, with a view of administering justice between the litigants, and it has the power to modify or vacate its decree when the ends of justice will be thereby served.

‘* * * This inherent power * * * may be exercised either where there has been a change in the controlling facts upon which the injunction rested, or the law has been changed, modified or extended, or where there the ends of justice would be served by modification. * * *

‘In California cases cited by petitioner, language may be found which is at variance with the views above expressed. [Citing cases.] But a review of these authorities reveals that, in many instances, the decree under consideration was not of the nature or classification of the one here in question, and also that earlier pronouncements have been modified or distinguished by later rulings. Tulare Irr. Dist. v. Superior Court, 197 Cal. 649, 242 P. 725; Wheeler v. Superior Court, 82 Cal.App. 202, 255 P. 275. For present purposes it is sufficient to state that no California case is cited which touches the precise point here under discussion, or which is here controlling. * * * ‘Familiar equity procedure assures opportunity for modifying or vacating an injunction when its continuance is no longer warranted.’'

In the Sontag case, supra, petitioner in seeking prohibition to prevent the vacation of the injunction, conceded that the injunction was erroneous under the law. That point is not conceded in the instant proceeding. On the contrary, petitioner here urges that Section 91 of Title 12 of the United States Code Annotated was inapplicable because: (1) There had been a final judgment entered by respondent court; and (2) The statute applies only to provisional remedies invoked prior to trial on the merits.

Were it not that ‘execution’ is prohibited as against a national bank in the same clause and upon the same terms as ‘injunction’, we might be inclined to agree with petitioner. True, none of the cited cases construing and applying Section 91 involves an execution or an injunction which is part of a judgment on the merits. While an injunction may be granted prior to judgment, an execution may not. If the section is read as prohibiting the issuance of an execution prior to judgment, it has no meaning or effect whatever. Petitioner urges that by the word ‘execution’ as used in Section 91, Congress referred to a writ ‘in the nature of attachment’ issued prior to or without judgment under the laws of some states. But, Congress is presumed to have used the word ‘execution’ in its generally accepted meaning. A writ of execution ‘is part of the remedy to effectuate the action by the enforcement of the judgment’. United States v. Nourse, 9 Pet. 8, 34 U.S. 8, 27, 9 L.Ed. 31. An execution is the end of the law. It gives the successful party the fruits of his judgment. Southern California Lumber Co. v. Ocean Beach Hotel Co., 94 Cal. 217, 221, 29 P. 627; Painter v. Berglund, 31 Cal.App.2d 63, 70, 87 P.2d 360. Therefore, in order to make the section effective as to executions, the words ‘final judgment’ must be held to refer to judgments from which no appeal can be taken and not merely judgments rendered. Using that construction in the instant action permits the portions of the judgment favorable to the bank—quieting its title to personal property, subject to certain rights of defendant, and enjoining defendant from claiming any other rights in or to said property—to stand; and, at the same time, nullifies the portion of the judgment enjoining the bank's interference with and destruction of the rights of defendants.

However, by the filing of the instant action, the Bank waived any advantage it might otherwise have had under said Section 91 of Title 12 of the United States Code. As stated by Justice Bridges, speaking for the Supreme Court of Washington, State ex rel. Southern Alaska Canning Co. v. Superior Court for King County, 128 Wash. 100, 222 P. 203, 205: ‘That statute [Sec. 91] cannot have any weight here. Although the mortgagee was and is a national bank, it has undertaken in its foreclosure to take advantage of the statutes of this state, and it cannot take action under a part of that statute without being also bound by the other provisions of it.

‘Being of the view that it was the duty of the court to issue the injunction, or restraining order * * * the writ applied for is granted.’ The writ sought and granted in the case just cited was to prevent the superior court from vacating its order restraining the bank from interfering with the property pending trial.

The instant action was brought by the Bank under the provisions of Section 738 of the Code of Civil Procedure of the State of California, which provides: ‘An action may be brought by any person against another who claims an * * * interest in * * * personal property, adverse to him, for the purpose of determining such adverse claim * * *.’

‘Equitable principles apply in a quiet title action’. Gonzalez v. Hirose, 33 Cal.2d 213, 217, 200 P.2d 793, 796. An action under Code of Civil Procedure 738 is brought to ‘finally settle and determine, as between the parties, all conflicting claims to the property in controversy, and to decree to each such interest or estate therein as he may be entitled to.’ Peterson v. Gibbs, 147 Cal. 1, 5, 81 P. 121, 123; Altman v. Blewett, 93 Cal.App. 516, 523, 269 P. 751; Hendershott v. Shipman, 37 Cal.2d 190, 194, 231 P.2d 481. Injunctive relief incident to a decree quieting title is an ancient remedy growing out of the ‘bill of peace’ in a court of chancery. It is a proper inherent remedy to terminate expensive and troublesome litigation over the ownership and right of possession of property. An injunction is issued to prevent a multiplicity of judicial proceedings. Section 526, subd. 6, Code of Civil Procedure. ‘In an action to quiet title, even though defendant does not file a cross-complaint or ask for any affirmative relief, a decree declaring that defendant has title, and enjoining plaintiff from further setting up a claim thereto, is a proper form of judgment. [Citing cases.]’ (Ridgway v. Ridgway, 95 Cal.App.2d 46, 50, 212 P.2d 6, 9.)

Mr. Justice Peters, speaking for the court, in Empire Star Mines Co. v. Butler, 62 Cal.App.2d 466, 530, 145 P.2d 49, 80, said: ‘Moreover, litigants are entitled to reasonable repose from future unnecessary litigation. The plain and direct manner of giving this repose is by enjoining the defeated party from continuing to perform the acts found to be wrongful. If he has no intent continue the wrongful acts he is not injured by the decree. If he has such intent the injunction protects the successful party from the necessity of bringing successive actions for damages. Thus, in quiet title suits, in the discretion of the court, the decree frequently includes an injunctive provision.’

The Bank commenced this action to quiet title and prayed that the court determine ‘all adverse claims of said defendants', that said defendants ‘be forever barred from asserting any claim or demand whatsoever in, to or on said property, or any part thereof, adverse to plaintiff’, and further prayed that ‘the court grant such other and further relief as it may deem just and proper’. Since the Bank prayed that the court adjudicate the rights of the respective parties, quiet the title in and to such property, and for the injunctive relief that defendants be barred from asserting any claim or demand whatsoever in or to said property in which the Bank's title was quieted, the latter waived any exemption it might otherwise have had from an injunction against its interference pending appeal with the rights of Loew's. Having invoked, by its complaint, the provisions of section 738 of the Code of Civil Procedure and injunctive relief being applicable to such quiet title action, the Bank cannot now be heard to stay the provisions of a judgment which they themselves asked for in their prayer. To permit the Bank so to do would be both unfair and inequitable.

The demurrer of the Bank, real party in interest, is overruled and it is ordered that a peremptory writ of mandate issue, requiring the respondent court to set aside and vacate its order of June 6, 1956, granting the motion of plaintiff Bank for stay pending appeal of the injunctive provisions of the judgment dated March 30, 1956, in action No. 599,919 in the respondent court.

WHITE, Presiding Justice.

DORAN and FOURT, JJ., concur. Hearing granted; McCOMB, J., not participating.