119 P. 674

In the Matter of the Application of W. J. BURT for a Writ of Prohibition.

Civ. No. 1071.Court of Appeal of California, Second District.
October 25, 1911.

Page 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.

THE COURT. —

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.