COYNE v. THE SUPERIOR COURT IN AND FOR COUNTY OF SANTA CLARA (1947)

In the opinion in this case it is stated that no demand was made by petitioner upon the superior court for the relief requested, and that the averment in the petition to the contrary was not true. Such statement was based on the facts as disclosed by the record then before us, and is in accordance with such record. The record shows that on October 17, 1946, the superior court transferred the case to the justice's court. The minutes of the court show that counsel for petitioner then made no objection to the order of transfer and that on that date and prior thereto no request to quash the writ of possession was or had been made. Based on these facts, this court pointed out that the averment in the petition for a writ of mandate that relief had been requested of the trial court was not supported. Counsel for petitioner, in his petition for rehearing, strenuously objects to the implication that he filed a petition containing a false averment and contends that his admission that the averment was not supported made on oral argument was simply for purposes of argument, it being his contention that no demand was necessary. He attaches to his petition for rehearing an affidavit of his client filed in the superior court on October 18, 1946 (the day after the superior court had transferred the case to the justice's court), in which affidavit, among other things, the affiant requests that the writ of possession be quashed. It thus appears that the averment in the petition for a writ of mandate that such relief had been demanded of the superior court is in accordance with the facts, as now for the first time disclosed to us. But this does not require that the petition for a rehearing be granted. The opinion heretofore filed was not based on the ground that relief had not been requested in the trial court but on the ground that the entire proceeding is moot, for reasons fully discussed in the opinion. Nothing said in the petition for rehearing has convinced us that such ground is not sound.

The petition for a rehearing is denied.

PER CURIAM.