Crowhurst

This is a proceeding in mandamus to require respondents to act upon an annexation petition with a view to determining whether a special election should be called to vote upon the proposition of annexation.

The respondents, by demurrer and answer, have presented but two excuses for their failure to act which require consideration.

First, it is pleaded that another action of the same character is pending. In October, 1928, a similar petition was filed with these respondents, asking them to call a special election for the same purpose. Having refused to act upon the petition a proceeding in mandamus was instituted in the first division of the district court of appeal. This was decided adversely to petitioners on March 15, 1929, and the judgment therein is now final. (Carter v. Green, 97 Cal. App. 564 [ 276 Pac. 120 ].) Assuming that the two actions are of the same character, so that the pendency of the first action would support a plea in abatement to the second, such plea is no longer available when the former action is no longer pending.

Second, it is argued that the petition for mandate herein does not sufficiently allege demand made upon the respondents to perform the acts…