MORROW v. SUPERIOR COURT IN AND FOR KINGS COUNTY (1935)

The petition for hearing is denied.

In denying the petition for hearing in the Supreme Court, after decision by the District Court of Appeal, we think it appropriate to say that the record fails to show that there will be any excess of jurisdiction of respondent court in proceeding, as it threatens to proceed in the action, while at the same time it refuses to grant the motion of petitioners to order the Medallion Oil Company brought in as party defendant. If the trial court had found, or the record indisputably showed, that ‘a complete determination of the controversy cannot be had without the presence of other parties' (section 389, Code Civ. Proc.), then the provisions of the cited section 389 would be mandatory. This court has held that in such case the question would become one of jurisdiction, in that the court would be without authority to proceed without bringing in said party, and that if, nevertheless, it assumed to do so, it could be subjected to the prohibitory writ quousque, that is to say, until the performance of a certain act, or the happening of a certain event—in this case the bringing in of said party, Medallion Oil Company. Ambassador Petroleum Co. v. Superior Court, 208 Cal. 667, 671, 284 P. 445.

But here the court did not find, and the record does not indisputably show, that in the pending action in the court below the controversy cannot be completely determined without the presence of Medallion Oil Company. In that action the court has not assumed control of the res, the property, or undertaken to determine its ownership against all the world. The action is simply one to determine adverse claims as between the plaintiff and the named defendants. While in such an action additional parties ordinarily may be brought in so as to include a settlement of their adverse claims, it is not our view that the controversy now before the court between the original parties may not be determined without prejudice to the rights of the oil company. Certainly those rights might be determined and the decree so drawn that it will save the rights, if any, of the excluded party. On the facts appearing, the question is not one of jurisdiction, and the court has jurisdiction to proceed without bringing in such party if in its discretion it shall decide upon that as the proper course.

PER CURIAM.