Canavarro

This is a petition for a writ of supersedeas, arising out of a controversy between the officers of certain labor union locals and the officers and representatives of their international union. Upon the filing of the petition this court issued an order to show cause why the writ should not issue, and stayed all proceedings pending the hearing on said order.

On December 27, 1939, plaintiffs and appellants, members of certain local unions, brought an action in the superior court for an injunction and an accounting, against various local unions, the officers thereof, the international union, its president, George Sealise, and others. The main charge in *497 the complaint is that the local unions are paying per capita taxes to the international union, but that the president thereof, in violation of its constitution, refuses to furnish the executive board with a statement of expenditures, and is wasting the money. It is also alleged that the president and others have entered into a conspiracy to prevent local unions from demanding an accounting, and in pursuance thereof purported to suspend from office Charles Hardy, duly elected fourth vice-president and western representative,…

I concur in the order denying the writ of supersedeas for the reason that the portions of the order of the trial court from which an appeal was taken and which are claimed by the petitioners herein to be mandatory became ineffective by lapse of time. The trial court directed that the contemplated trial of the petitioners be conducted before three members of the general executive board and be commenced not later than March 5, 1940. That time had passed before the hearing on the application for the writ was had in this court, and the directions to hold the trial on a day that had long since passed became ineffective.

But I dissent from the holding that the portions of the order of the trial court directing the time, place and manner of the trial were not mandatory. In language too plain to be misunderstood the court assumed to direct the time when, the place where, and the manner in which the trial should be had and to order a record thereof made and certified to absent members of the board. The consequences of this language cannot be minimized by assuming that the trial court could not have intended its obvious effect, inasmuch as it went beyond the issues then before the court.…