EDEN MEMORIAL PARK ASSOCIATION v. DEPARTMENT OF PUBLIC WORKS (1962)

District Court of Appeal, Second District, Division 2, California.

EDEN MEMORIAL PARK ASSOCIATION et al., Plaintiffs, Appellants and Petitioners, v. DEPARTMENT OF PUBLIC WORKS et al., Defendants and Respondents.

Civ. 26719.

Decided: September 21, 1962

Sandler & Rosen, by Nelson Rosen, Beverly Hills, and Thorpe, Sullivan, Clinnin & Workman, by Roger M. Sullivan, Los Angeles, for petitioners. Stanley Mosk, Atty. Gen., N. B. Peek, Don G. Kircher, Deputy Attys. Gen., George C. Hadley, San Diego, George W. Miley, Pacoima, Charles E. Spencer, Jr., Los Angeles, and Robert E. Reed, San Francisco, for respondents.

Petition for writ of supersedeas. Recently we had before us a petition for mandate (2nd Civil No. 26613) to direct the superior court to set aside a judgment which dissolved a preliminary injunction and dismissed petitioners' complaint for declaratory relief. We denied that petition and appellants filed a petition for hearing in the Supreme Court, praying inter alia that their petition ‘be deemed, in the alternative, one for a writ of supersedeas or an order equivalent thereto.’ The petition was denied on August 29, 1962, without opinion. Later the appeal from the judgment was transferred to this court and the instant petition for supersedeas filed herein.

We construe the said ruling made by the Supreme Court on August 29 to be in substance a denial of supersedeas herein. Accordingly we deem it improper for us to grant the writ.

Moreover, it seems that we do not have the power to restore during the pendency of the appeal the injunction which the lower court dissolved and refused to continue in effect during the appeal. (Wollenshlager v. Riegel, 186 Cal. 622, 200 P. 726; Signal Oil etc. Co. v. Ashland Oil etc. Co., 49 Cal.2d 764, 774, 322 P.2d 1, footnote 4.)

Petition for supersedeas denied.

PER CURIAM.

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