Baker v. Municipal Court

198 Cal. App. 2d 556, 17 Cal. Rptr. 642, 1961 Cal. App. LEXIS 2575

• Court: California Court of Appeal
• Decided: December 27, 1961
• Docket: Civ. 25193
• Status: Published

Opinion

VALLEE, J.

Appeal from a judgment of the superior court denying a writ of prohibition sought to restrain respondent municipal court from taking further proceedings in a criminal action.

Plaintiff was charged in the municipal court with a violation of section 23102 of the Vehicle Code (misdemeanor drunk driving). He demurred to the complaint on the ground section 23102 violated the Fourteenth Amendment and article I, section 13, clause 6, of the Constitution of California. The demurrer was overruled. Plaintiff then petitioned the superior court for a writ of prohibition to restrain the municipal court from taking further proceedings in the criminal action. The petition was denied. Plaintiff appeals from the judgment denying the writ.

The record shows that after the petition for the writ was denied plaintiff was tried, found guilty, and sentenced to 10 days in jail. It thus appears the appeal is moot and the judgment must be affirmed.

Prohibition is a preventive, rather than a corrective, remedy. It issues only to restrain the commission of a future act and not to undo an act already completed. It does not lie after judgment is entered where there are no further judicial acts to be performed or to prevent the enforcement of an erroneous judgment. (Big Jim Mines, Inc. v. Superior Court, 9 Cal.2d 503, 504 [71 P.2d 67] ; Donner Finance Co. v. Municipal Court, 28 Cal.App.2d 112, 114 [81 P.2d 1054] ; Lambert v. Municipal Court, 179 Cal.App.2d 682, 683 [3 Cal. Rptr. 895].)

Affirmed.

Shinn, P. J., and Ford, J., concurred.