LOS FELIZ INV CO v. SUPERIOR COURT OF LOS ANGELES COUNTY (1935)

In this proceeding in prohibition it appears that after the hearing on the retrial of the case of Franklin R. Kenney, plaintiff, v. Los Feliz Investment Company, a corporation, et al., defendants (No. 316426 in the files of the superior court), the trial court announced that the issues in said cause would be determined in accordance with the contentions of the plaintiff therein, and that the judgment would contain an order enjoining the defendants therein from declaring a default and foreclosing the trust deed. Whereupon counsel for the defendant Los Feliz Investment Company stated that his client intended to perfect an appeal from such a judgment. In contemplation of the appeal and for the benefit of the company the court incorporated in the judgment thereafter entered a provision that the injunctive order against default and foreclosure would continue to be operative pending the appeal only on condition that the plaintiff therein deposit into court each month the difference between 50 per cent. of the royalty proceeds received by the company and the amount claimed by the company to be due each month, and that if such deposits be not made the injunction would be stayed pending the appeal. After the appeal was taken, and by reason of the adoption of a Code of Fair Competition for the Petroleum Industry under the National Industrial Recovery Act (48 Stat. 195), the production of oil and gas from the property involved was materially curtailed. The plaintiff Kenney then moved the trial court for an order to the effect that thenceforth the only requirement for maintaining the injunction in force pending the appeal be that he pay into court each month the one-half of the entire royalty proceeds remaining after paying the other one-half thereof direct to the company. The company resisted the motion. Upon the announcement by the court that it intended to grant the motion, the present proceeding was commenced on the theory that the court would thereby act in excess of its jurisdiction.

The appeal from the judgment in the case of Kenney v. Los Feliz Investment Co. et al., supra (Cal Sup.) 43 P.(2d) 255, has been determined by the filing this day of an opinion and order affirming the judgment. By reason of that fact it is obvious that it is now unnecessary to determine the issue of law presented in the present proceeding.

The peremptory writ is denied, and the proceeding is dismissed.

SHENK, Justice.

We concur: WASTE, C. J.; THOMPSON, J.; SEAWELL, J.; PRESTON, J.; CURTIS, J.