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In re Burt

17 Cal. App. 309 Court Second Appellate District. Decision date 1911-10-25 Docket Civ. No. 1071 English

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p. 309
[Civ. No. 1071.
Second Appellate District.
October 25, 1911.]
In the Matter of the Application of W. J. BURT for a Writ of Prohibition.

Headnote

Prohibition—Eight op Appeal prom Superior Court.—A writ of prohibition will not be issued by the district court of appeal where it affirmatively appears from the petition for the writ that a proceeding in prohibition involving the same matter was instituted in a superior court within the appellate district, and the writ was there denied, which judgment has not become final, the time for appealing therefrom not having elapsed.
Id.—Jurisdiction op Appellate Court in Prohibition.—Under the constitution this court has appellate jurisdiction in prohibition; and while it also has original jurisdiction therein, it will not exercise the same, where the petitioner possesses the right of appeal from a judgment had in the superior court where the original proceeding was commenced.
Id- '—Application op Bule as to Prohibition.—Under rule XXVI of the supreme court, this court will not issue writs of prohibition in the absence of some showing rendering it proper that the writ should issue from this court; and it is held that, under the circumstances of this case, this court should refuse to issue the original writ.
p. 310
PETITION for writ of prohibition to the Superior Court of Los Angeles County.
The facts are stated in the opinion of the court.
R. J. Adcock, and Kendrick & Ardie, for Petitioner.

It affirmatively appears from the petition filed that a proceeding in prohibition involving the same matter was instituted in the superior court of Los Angeles county, a hearing had therein and writ denied, which judgment has not yet become final, the time for appeal not having elapsed. Under the constitution of this state, this'court has appellate jurisdiction in prohibition, and while it also has original jurisdiction in such proceedings, it will not exercise the same where the petitioner possesses the right of appeal from a judgment had in the court where the original proceeding was commenced. Under rule XXVI of the supreme court, [ 144 Cal. 1 , 78 Pac. xi], this court will not issue writs of the character herein prayed for, in the absence of some showing rendering it proper that the writ should issue from this court. Here petitioner elected to proceed in the superior court, and the action of this court can only be had by a review on appeal from the judgment there rendered. It is apparent, therefore, considering the constitution and the rule above referred to, that this court should, under the circumstances of this case, exercise its authority in refusing to issue the original writ.

Writ denied.

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