Johnston v. Superior Court

ELWOOD B. JOHNSTON, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent.

COUNSEL

Edgar J. Melchione and Earl Oakley for Petitioner.

Harold W. Kennedy, County Counsel, John B. Anson, Deputy County Counsel, Walley & Davis and Milton Davis for Respondent.

OPINION

THE COURT.

[1] It appearing (1) that petitioner appealed from an order of respondent requiring petitioner to pay his former wife sums of money as alimony and attorney's fees; (2) that thereafter petitioner was ordered to show cause before respondent why he should not be required to pay his former wife $3,500 for attorney's fees and $750 on account of costs in connection with such appeal; and (3) that respondent threatens to make the order demanded by the former wife which, if made, will cause petitioner irreparable damage; and

It appearing that petitioner demands that a writ of prohibition be directed to respondent commanding it to desist from taking further proceedings against petitioner for the payment of alimony and counsel fees and to refrain from further proceedings upon the application of the wife for an order that petitioner pay the fees and costs demanded to enable her to defend petitioner's appeal from the order for alimony and attorney's fees; and

It appearing that petitioner has a plain, speedy and adequate remedy at law by appeal (Phelan v. Superior Court, 35 Cal. 2d 363, 370 [217 P.2d 951]; Lindley v. Superior Court, 141 Cal. 220 [74 P. 765]; Mitchell v. Superior Court, 98 Cal. App. 2d 304 [219 P.2d 861]) and that such remedy is not rendered inadequate by reason of petitioner's financial inability to furnish bond to stay any order appealed from. (Dickerson v. Superior Court, 41 Cal. App. 534, 536 [183 P. 235]

It is ordered that the alternative writ issued be and it is dissolved and a peremptory writ is denied.