JAMES IRVINE, Petitioner, v. CALIFORNIA GIBSON, County Treasurer, etc., et al., Respondents, 19 Cal. 2d 14

EDMONDS, J. — The petitioner is the owner of bonds in the face amount of $16,000 issued by the respondent reclamation district pursuant to the provisions of

section 3480 of the Political Code. The bonds matured on January 1, 1936, and $10,400 of the original principal sum was paid on April 26, 1939. Interest upon the total amount of $16,000 has been paid in full to date of maturity. The purpose of this proceeding in mandamus is to compel the payment of the $5,600 of principal remaining unpaid, together with interest upon $16,000 from date of maturity to April 26, 1939, and upon $5,600 from the last named date.

As grounds for the issuance of the writ of mandate, the petitioner pleaded the facts which have been stated and that there is sufficient money in the bond fund of the respondent district to pay the amounts claimed by him as well as all other obligations of that fund. The following was also alleged: On December 27, 1938, petitioner commenced an action in the superior court, naming as defendants the persons who are the respondents in this proceeding and also the reclamation district.

As the cause of action in that suit he stated the same facts relating to his ownership of the bonds and the payment of principal and interest thereon as are alleged in the present proceeding and prayed judgment for $5,600 and interest upon unpaid principal from January 1, 1936. That action is now at issue and is ready for trial.

The respondents demurred to the petition and by answer denied the allegations of the petitioner that the respondent treasurer “refuses to pay the amount remaining of the principal of said bonds except upon surrender of the bonds and waiver of interest.” They also pleaded, in both demurrer and answer, that the petitioner’s right to recover is barred by the statute of limitations. The writ of mandate must be issued “in all eases where there is not a plain, speedy and adequate remedy, in the ordinary course of law.” (See. 1086, Code Civ.

Proc.) Whether, in a particular case, the writ should issue, lies, to a considerable extent, in the discretion of the court to which the application is made. (Rogers v. Board of Directors of Pasadena, 218 Cal. 221 [22 Pac. (2d) 509]; Hitch v. Superior Court, 2 Cal. App. (2d) 406 [38 Pac. (2d) 190]; 16 Cal. Jur. 768.) The right to the writ must be clear and certain (Dobyns v. Cheshire, 9 Cal. App. (2d) 77 [48 Pac. (2d) 743]), and mandamus may not be resorted to as the substitute for an adequate legal remedy. (McPherson v. City of Los Angeles, 8 Cal. (2d) 748 [68 Pac. (2d) 707]; Northrup v. Haynes, 15 Cal.

App. (2d) 665 [59 Pac. (2d) 1056]; Coon v. Biscailuz, 1 Cal. App. (2d) 346 [36 Pac. (2d) 430]; Potomac Oil Co. v. Dye, 10 Cal. App. 534 [102 Pac. 677].) The purpose of the writ in this state, as at common law, is to prevent a failure of justice. The petitioner in the present proceeding has not only shown that there is an adequate legal remedy for the enforcement of the right which he claims, but also that he is concurrently pursuing that remedy. Without bringing his action in the superior court to trial, he is attempting, by this proceeding in mandamus, to attain the same result for which he brought suit.

In this respect he is in exactly the same position as the petitioner in Keyston v. Banta-Carbona Irr. Dist., 19 Cal. App. (2d) 384 [65 Pac. (2d) 371], where the proceeding was dismissed upon a showing that there was an action pending which involved the same parties and issues. Also, the petitioner in the present case, is not only proceeding in both courts but he is relying upon the pending action in the superior court as the basis of his asserted right to a writ of mandate.

In his brief, he contends that the statute of limitations applicable to the bonds is four years and that it is not suspended by the lack of funds in the hands of the county treasurer to meet principal and interest upon them. But he declares that he is entitled to the writ because the suit which he filed has tolled the statute. Under these circumstances, it is obvious that, even if the rule of the Keyston case was not applied, the issues presented in the instant proceeding may not properly be decided by this court.

So far as the bar of the statute of limitations is concerned, the petitioner’s rights should be determined by the superior court as of the date when he filed the suit which he now contends has tolled the statute of limitations. That court should also determine the question of fact raised by the treasurer’s answer here, which, under long established practice, would compel a reference. The proceeding is dismissed without prejudice to the petitioner’s rights to prosecute the pending action. Gibson, O. J., Shenk, J., Curtis, J., and Traynor, J., concurred.