C. M. WEILE, Petitioner, v. GEO. A. STURTEVANT, as Judge, etc., Respondent, 176 Cal. 767

LAWLOR, J. This is a proceeding for a writ of mandate. J. M. Brown, Inc., a corporation, had recovered a judgment in the superior court in San Francisco against W. P. Fuller & Co. Thereafter, on appeal, the judgment was reversed and a new trial ordered. Subsequently J. M. Brown, Inc., having been adjudicated a bankrupt, the trustee sold the chose in action which the bankrupt had against W. P. Fuller & Co. to the petitioner, who then had the cause set for a retrial in the court below in the department presided over by the respondent. Before the day set for the retrial W..P.

Fuller & Co. filed its bill of costs on appeal and moved to stay all further proceedings in the cause until such costs be paid. This motion was granted by the respondent, who also denied-petitioner’s motion to vacate the order staying proceedings. The purpose of this proceeding is to secure a writ compelling the respondent to proceed with the retrial of the cause.

Respondent’s contention, in answer to the alternative writ issued in this ease, is that it is one of the inherent powers of a court of general jurisdiction to stay proceedings upon a retrial until costs of appeal have been paid, the exercise of such power to be within the sound discretion of the trial court, reviewable only for abuse of such discretion. The circumstances surrounding the making of the order staying proceedings are not before us, and the petitioner does not claim that if the power contended for does exist its,exercise was not justified under the facts in this case.

Petitioner’s right to a writ of mandate rests solely on the determination of the question whether, under any conceivable set of facts, the superior court, before which a case is pending for retrial after a judgment for the plaintiff has been reversed on appeal, has the power to stay such retrial until the costs of the appeal have been paid. If in any ease such a stay can be ordered, if such power is vested in the superior court, then its exercise in this instance must be deemed proper. The subject here involved is a matter of first impression in this state. It is nowhere touched upon in the statutes or decisions.

We must therefore look to the practice at common law. If the power to stay proceedings as contended for by respondent was inherent in courts at common law, such power would still be vested in 'the superior courts of this state. (Pol. Code, sec. 4468; Burns v. Superior Court, 140 Cal. 1, 4, [73 Pac. 597]; Lukens v. Nye, 156 Cal. 498, 508, [20 Ann. Cas. 158, 36 L. R. A. (N. S.) 244, 105 Pac. 593]; Ex parte Karlson, 160 Cal. 378, 382, [Ann.

Cas. 1912D, 1334, 117 Pac. 447].) In the common-law courts of England it was the general practice to stay a second action in ejectment, one recovery not being res adjudicuta, until the costs of the prior action had been paid. This was done “as a measure of just protection to the party who was thus subjected to repeated litigations over the same cause of action.” (Buckles v. Chicagio, M. & St. P. Ry. Co., 47 Fed. 424. See, also, Henderson v. Griffin, 5 Pet. 151, 158, [8 L.

Ed. 79]; 11 Cyc. 256.) In time the same practice was extended to all classes of cases where the second action was between the same parties and involved the same subject matter, the theory being that the court has inherent power to prevent a vexatious multiplication of suits. The rule is stated and the reasons for it are well summarized in Gerety y.

Beading, 9 Phila. (Pa.) 153, the court saying: “The practice of courts in staying proceedings in a second action for the same cause between the same parties, where the plaintiff has failed in his first suit, until he shall have paid the costs of that suit, is a very beneficial one, and too well settled to admit of any doubt. ' It is founded upon the necessary control which courts of justice have over their own proceedings, and their duty to prevent them from being made the means of oppression and vexation. (3 Wilson, 149; 2 Wm. Bl. 741; 1 Tidd’s Pr. 94; 2 T.

R. 501, n.; Beames on Costs, 209.) It is a practice which, as has been well said, is convenient and just in all the aspects in which it can be viewed. Whatever may have been its origin, it is not confined to actions of ejectment, but" applies equally to all forms of action. Nor is it confined to cases in which there has been a trial on the merits. It is applicable also to cases of nonsuits: Nevitt v. Lade, 3 Doug. 396; and to cases of discontinuances, non pros., and judgment on demurrer. Neither will a slight variation in the names of the parties make any diffierence: Lampley v.

Sands, 1 Tidd’s Pr. 539; or the fact that the first action was in another court.” Upon the same theory it has been held that a similar power exists in the case of a retrial following a reversal on appeal where the costs of appeal have not been jiaid. Such a stay was ordered in Jackson v. Schauber, 4 Wend. (N. Y.) 216. Other jurisdictions have also affirmed the discretionary power of trial courts to stay a retrial until payment of costs on appeal. (Clark v. Bay Circuit Judge, 154 Mich. 483, [117 N. W. 1051]); McIntosh v. Hoben, 11 Wis. 400; Felt v. Amidon, 48 Wis. 66, [3 N.

W. 825].) In these eases the decision was put upon the same grounds as those stated in Gerety v. Beading, 9 Phila. (Pa.) 153, as grounds for staying a new action for the same relief. In only one state where the matter has been before the court for decision has the power here contended for by respondent been denied. In Ex parte Matthews, 145 Ala. 505, [40 South. 78], relied upon by petitioner, the court recognizes and sanctions the practice of staying a second action until costs of the first have been paid, citing Alabama cases where this was done.

The opinion further admits that “the main theory upon which the courts exercise this right of staying the proceedings until the costs have been paid is founded upon the necessary control which courts have over their own proceedings, and their duty to prevent them being made the means of oppression and vexation,” and that “the rule is well established that the proceedings in the second suit will be stayed until the costs in the prior case have been paid.” But the court can “see tío good reason for extending the rule of staying proceedings,” on the ground that a retrial is not like a second action, and would not be oppressive or vexatious or encourage a multiplication of suits.

In fact, however, there is no real difference between a second action and a retrial in this particular. Either case will depend on the circumstances. Many instances may be imagined where to proceed with the retrial 'after a reversal would be just as oppressive and vexatious as to bring a second action. If such hardship is apparent in such a case, then we have as strong reason for a stay of proceedings as could be advanced for the stay of proceedings in a second action for the same cause.

This does not mean that such a stay must be had, or even may be had, in every case where the costs of appeal have not been paid. There must be facts showing oppression or hardship, although what such facts are must be determined in the particular case. Mere nonpayment of costs, not coupled with any other circumstances, would not be cause for a stay. (Felt v. Amidon, 48 Wis. 66, [3 N. W. 825].) The discretion vested in the court “should be exercised cautiously, ex aequo et bono, employing or declining the power as the right and justice of the particular case may seem to require.” (Buckles v. Chicago, M. & St. P.

Ry. Co., 47 Fed. 424.) Thus properly guarded against abuse, the power to stay proceedings is a most useful one to prevent the hardship to which the unlimited right of suit sometimes leads. As already stated, we have in the ease at bar no facts before us from which the propriety of the respondent’s order can be determined. It must, therefore, be assumed that the discretion was properly exercised. The conclusion reached makes it unnecessary to pass upon the point that the petition is barred by laches. The application for a writ of mandate is denied. Shaw, J., Sloss, J., Henshaw, J., and Angellotti, C.

J., concurred.