Wright v. Superior Court , 139 Cal. 469 ( 1903 )

I concur in the judgment granting the writ, and in most that is said in the opinion of Mr. Justice Van Dyke, — except that in this case it is not necessary, in my opinion, to pass upon the question whether under our law a bill of discovery can under any circumstances be maintained.

If section 3423 of the Civil Code, which expressly prohibits the granting of an injunction "to stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded," except to prevent a multiplicity of suits, is not unconstitutional, then the Santa Clara court had no jurisdiction to enjoin the trial of the case in the San Francisco court. Of course, there is a distinction between a want of jurisdiction in a court and a failure in a complaint to state facts sufficient to constitute a cause of action; but a court has no jurisdiction to do an act absolutely prohibited by law.

That the provision of section 3423 above quoted was within the constitutional power of the legislature to enact I have no doubt. It was so held expressly in Spreckels v. Hawaiian etc. Co.,117 Cal. 377, where the question was directly raised and necessarily determined. In that case, in answer to the contention made there, as here, that because our state constitution gives to the superior courts "jurisdiction in all cases in equity," therefore said section was unconstitutional, the court, speaking of the general equitable jurisdiction given to those courts by the constitution and the provisions of the code restricting injunctions, says that such jurisdiction is not "diminished when by statutory changes some rights cease to exist, and certain cases which courts of equity once entertained can no longer arise," and that the constitutional grant of equitable jurisdiction "was not intended as a limitation upon the power to legislate upon the rights of persons." Indeed, to hold otherwise would be to hold that the laws of England and the rights of persons there, so far as they were recognized and enforced by courts of equity in that country, must ever be the law and the rights of persons in California, beyond the possibility of change by legislative action here. The provision of our constitution giving to certain courts jurisdiction in cases of equity merely means that whenever, underour laws, proper cases in equity arise, those courts have jurisdiction of such cases. The state legislature has all legislative power not prohibited by the constitution; and there is nothing in the constitution which prohibits the legislature from enacting that persons shall not have the right to have injunctions issued, receivers appointed, etc., in certain instances or for certain purposes.

The cases cited to maintain the opposite view — except, perhaps, the case of Gregory v. Diggs, 113 Cal. 196 — are not in point. They are mostly cases where the execution of a judgment was enjoined upon the ground that it had been satisfied, or where the action was to set aside a judgment on the ground of fraud in procuring it; and section 3423 can hardly be said to be applicable where the action or proceeding has terminated in a final judgment. Moreover, section 3423 was not called to the attention of the court in those cases, or discussed. In Gregoryv. Diggs there were pending two actions arising out of the same identical transaction, — one in a justice's court, and the other in the superior court, — the demand of the parties involving only legal issues; and the main question was the right to consolidate the two actions and to compel the litigation of the whole matter in the one court. The plaintiff, as defendant in the justice's court, had pleaded a counterclaim which was in amount beyond the jurisdiction of the justice, and the court said: "If the counterclaim sought to be set up did not grow out of the same transaction, and did not involve a trial and determination of the same precise issue, so that the determination of one case could be pleaded as a bar to the other, the case would be different." Of course, there could be no consolidation if the trial of the two actions proceeded in the two courts. It is evident that this court had before its mind prominently the matter of consolidation; and the case is not authority for the proposition asserted by respondent in the case at bar.

Angellotti, J., concurred with McFarland, J.