Hamberger v. Police Court

106 P. 894, 12 Cal. App. 153, 1909 Cal. App. LEXIS 33

• Court: California Court of Appeal
• Decided: December 13, 1909
• Docket: Civ, No. 663.
• Status: Published

Opinions

HALL, J.

Plaintiff brought this proceeding in the superior court of the county of Fresno for the purpose of securing a writ to issue out of said court, prohibiting the police court of the city of Fresno and the judge thereof from proceeding with the trial of an action then pending in said police court, upon an account against plaintiff herein for $121.65 for goods sold to said plaintiff.

Defendants filed a general demurrer to plaintiff’s complaint, and the court sustained the same, and entered judgment denying plaintiff’s application for a writ of prohibition. From the judgment plaintiff has appealed, and the only question presented by the appeal is as to the correctness of the ruling of the court sustaining the demurrer.

The ruling of the court was clearly correct. The writ of prohibition will not issue to an inferior tribunal or officer, acting without or in excess of the jurisdiction of such tribunal or officer, unless the aggrieved party be without a plain, speedy and adequate remedy in the ordinary course of law. (Code Civ. Proc., secs. 1102, 1103; Levy v. Wilson, 69 Cal. 105, [10 Pac. 272]; Powelson v. Lockwood, 82 Cal. 613, [22 Pac. 143]; Murphy v. Superior Court, 84 Cal. 592, [24 Pac. 310]; Strouse v. Police Court, 85 Cal. 49, [24 Pac. 747]; Grant v. Superior Court, 106 Cal. 324, [39 Pac. 604] ; McDonald v. Agnew, 122 Cal. 448, [55 Pac. 185]; Lindley v. Superior Court, 141 Cal. 220, [74 Pac. 765]; Valentine v. Police Court, 141 Cal. 616, [75 Pac. 336] ; McAdoo v. Sayre, 145 Cal. 344, [78 Pac. 874]; Carr v. Superior Court, 147 Cal. 227, [81 Pac. 515]; McAneny v. Superior Court, 150 Cal. 6, [87 Pac. 1020].)

An appeal lies to the superior court, both upon questions of law and fact, from any judgment rendered by a police court in a civil action. (Code Civ. Proc., secs. 974, 975.) If the appeal be upon questions of law alone, an expeditious method of settling the statement is provided (Code Civ. Proc., see. 975), and upon such appeal the superior court may review all orders affecting the judgment appealed from.

In the case at bar the judgment sought against appellant in the police court was an ordinary money judgment for goods sold. That an appeal from such a judgment is a remedy in the ordinary course of law, plain, speedy and adequate, cannot be doubted. (Holbrook etc. v. Superior Court, 106 Cal. 589, [39 Pac. 936]; Powelson v. Lockwood, 82 Cal. 613, [23 Pac. 143] ; Murphy v. Superior Court, 84 Cal. 592, [24 Pac. 310]; Strouse v. Police Court, 85 Cal. 49, [24 Pac. 747]; Broder v. Superior Court, 103 Cal. 124, [37 Pac. 191] ; Grant v. Superior Court, 106 Cal. 324, [39 Pac. 604] ; Lindley v. Superior Court, 141 Cal. 220, [74 Pac. 765]; Valentine v. Police Court, 141 Cal. 616, [75 Pac. 336]; McAdoo v. Sayre, 145 Cal. 344, [78 Pac. 874]; McAneny v. Superior Court, 150 Cal. 6, [87 Pac. 1020].)

The judgment is affirmed.

Cooper, P. J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 10, 1910.

Beatty, C. J., dissented from the order denying a rehearing in the supreme court, and filed the following opinion on the third day of March, 1910: