The San Francisco call., 1896-03-13

lature established the law in this State for the
goyernance of the people of this State. 1t was
larging the jurisdiction of the courts OF Ha-
| waii. OF New York or of England. 1t was con-
cerned In the protection of citizens of CalIfor-
mia from wrongs threatened or carried on by
other persons, whether citizens or not The
state owes this protection to its citizens in re-
turn for the support which the citizens give
| to it;
"The old distinctions between actions at law
and actions in equity have been abolished, so
lar as concerned the forum, by the constitu-
ton in this State. Therefore, where all of the
superior courts in California had complete
| equitable jurisdiction wrong, or least con-
| fusion, would have resulted, if citizens sued
In one Superior Court hao been permitted to
bring counter actions for equitable relief in
another Superior Court of concurrent jurisdic-
ton. This rule had been adopted by the courts
OF TINS State long prior to the adoption OF sec
ton 3423 OF the Civil Code, and that section
must be taken as merely declararory of the
rule"
Foreign judgments May Be Reuiesoed.
In the case of Smith VS.. Davis decided in
June, 1891 go Cal, 32), the object of the
action to obtain q decree directing the
III Washington Territory. The Supreme Court
says "1f the parties are within the jurisdic-
| to stay proceedings in uit in a foreign coun-
try. Courts of equity have, as between parties,
reviewed the judgments of foreign courts and
even sales made under their judgments when
fraud or undue advantage was shown.
"a trust will be enforced pertaining to
realty, regardless of the situation of the prop
erty.
THE DEGREES OF courts of equity primarily
and properly act in personam, and, at most,
collaterally only in REM
One Exception to the Doctrine
Story says (Eq. Jur., sec 9OO):
1t is now held that whenever the parties resi-
dent within country, the courts have full author
ity TO act upon them personally with respect to the
Justice may require; and with that view to order
them to take omit to take any steps and proceed
ings in any other Of Justice. whether in the
same country or in any foreign country. There is
exception to this doctrine which has been duly
recognized in America; and that is that the State
cannot enloin proceedings in the courts of the
United States. the latter in former courts.
This exception proceeds upon peculiar grounds of
municipal and constitutional law, the respective
courts being entirely competent 10 administer full
relief in the suits pending therein.
We find the following statement in Pome-
roy's Eq. Jurisprudence, VOL 3, Sec. 1913:
The power to act in personam, through their
remedies is still held by all courts of equity, even
in the presence OF the foregoing legislation. OF
this nature must always be the remedies when the
subject matter, cit her real personal property is
situated beyond the territorial jurisdiction OF the
court in another State or country. The iurisdic-
tion to grant such remedies is well settled Where
the subject matter is situated within another State
country, but the parties are within the urisdic-
tion of the court, any suit may be maintained and
remedy granted which directly affect and operate
upon the person OF the defendant and not upon the
subject matter, although the subject matter is
| ferred TO in the decree and the defendant is or
dered TO do or refrain from certain acts toward it,
and 1t Is thus ultimately but indirectly affected by
the relief granted.
The Regulation of Provisional Injunctions.
Our Code of Civil Procedure (section rs, sub
division II merely repeats wha the constitu-
ton declares, namely, that Superior Courts
shall have original Jurisdiction in all cases of
equity. article VI section 5.)
The Civil Code (section 342D provides that
provisional injunctions shall be regulated by
the Code of Civil Procedure.
Section $50, Code OF Civil Procedure, says:
An Injunction may be granted in the following
cases:
l. When 1t appears by the complaint that the
plaintiff Is entitled to the relief demanded and
such relief part thereof consists in restrain
ing the commission continuance of the act COM
planned OF either for limited period or perpetu-
ally.
2. whenit appears by the complaint = 8 that the
commission or continuance of some act during the
litigation would produce waste, great or ire
parable injury to the plaintiff
The Inherent and Constitutional Po,oers.
The equity jurisdiction with which our
courts are vested under the constitution is
that administered in the High Courts OF Chan
Gerry in England. People, ex. rel. Deschen-
acher VS.. Davidson, 80 Cal, 379.) See also:
Rosenberg VS.. Frank, 90 CAL, 337; estate Of
Hinckley, So Cal, 457.
The Legislature must not prescribe such
regulations concerning the exercise of juris-
diction may substan TALLY impair the con-
defeat their exercises. (Ex parte Harker 40
Cal, 467; Wilson VS.. Roach, CAL. 362; Will
lis vs. Farley, "a CAL. 500)
AS late as 1898 Mr.. Justice Paterson, speak
ing for the court upon the subject OF inherent
and constitutional powers of the court Tin the
particular instance the power to punish for
contempD said: 1.-The Legislature may regu-
late the procedure ana enlarge the powers, but
il cannot. without tire nching upon the consti-
tutional powers of the court and destroying
the autonomy of that system of checks and bal
ances which is one of the chief features OF our
triple form of government, fetter the power
ITSELF" In re Shorrridge, 80 Cal, 1922
Jurisdiction OF the Chdncery Courts.
In 1890, in the case of Cole vs. Cunningham
! 90 Sup Court Reports, 272), the United States
Supreme Court says:
The Jurisdiction of the English Court of Chancery
to restrain persons within its territorial limits and
under its jurisdiction from doing anything abroad
whether the thing forbidden be a conveyance or
other act, in pals, the institution the prosecu
tion of action in foreign court, is we'll settled
In Penn vs. Lcrd Baltimore q Yes. ST., 444) Lord
Hardwicke recognized the principle that equity as
1t acts primarily In personam, and not merely in
rem may, where person against whom relief is
sought is within the jurisdiction, make a decree
upon the ground OF a contract or any equity sub
sstng between the parties respecting property sit
uated out of the Jurisdiction. Penn VS..
Lord Baltimore is cited with approval by Chief
Justice Marshall in Massick Watts (6 Crauch,
14S), where suit was instituted in the Circuit
Court of Kentucky to compe! the conveyance by
the defendant OF the legal title of land in Ohio on
the ground that he had notice when it was pur-
chased of the prior equity of the complainant The
defense was that the land beyond the jursdic-
ton of the court and within the State of Ohio
This defense was 0verruled by the court below
and its decision affirmed by this court.
This court of the opinion, said the Chief Just
ice that an of fraud, of trust of contract
the jurisdiction OF Court of Chancery is sustain
able wherever the person te found although lands
not within the jurisdiction of court may be affected
by the decree And in Pennoyer vs. n eff (95 y. s..
714 1885, it is said in the opinion of the court by
Mr. Justice Field "The State, through its trbtI-
nails, may compel persons domiciled within its
limits to execute in pursuance of the contracts re-
specting property elsewhere situated, instruments
in such form and with such solemnities trans
fer the title. so far such form aties be com
piled WITH and the exercise Of this jurisdiction in
no manner interferes with the supreme control of
the property by the State within which it is
situated" In Lord Portarlington VS. Soulvy @
Mylne tS K, 104, l08). Lord Chancellor Brougham
reviews the history of the jurisdiction to restrain
parties from commencing or prosecuting actions in
foreign countries. and concluded: "Nothing can be
more unfounded of the doubts of the jurisdiction
That is grounded like all other jurisdiction Of the
court, not upon an pretension to the exercise of
judicial and administrative rights abroad but on
the circumstance of the person party on whom
court"
Can Restrain Those Wathin the Limits.
The case of Dehon vs. Foster "a Allen, 545) Is
leading case upon the subject. II was argued
by eminent counsel on both sides and decided
upon great consideration. The Supreme Judi
cial Court of Massachusetts. spea king through
Bigelow, c. j., points out that the jurisdiction
of a court, as court OF chancery, to restrain
persons within its Jurisdiction from prosecut-
ing suits upon proper case may, either in the