Lambert v. Municipal Court

179 Cal. App. 2d 682, 179 Cal. App. 682, 3 Cal. Rptr. 894, 1960 Cal. App. LEXIS 2280

• Court: California Court of Appeal
• Decided: April 12, 1960
• Docket: Civ. 24413
• Status: Published

Opinion

FOURT, J.—This

is an appeal from the order and judgment of the superior court rendered on July 7, 1959, denying plaintiff’s application for an alternative writ of prohibition.

A recital of the facts is unnecessary other than to state that on July 17, 1959, after a four-day trial Virginia Lambert, the appellant herein, was found guilty of petty theft. The trial court (municipal court) continued the ease for sentencing until November 16, 1959. On November 17, 1959, appellant was sentenced by respondent court in absentia to 15 days in the county jail on the misdemeanor charge. This judgment and sentence is presently being appealed to the appellate department of the superior court.

Appellant asks this court to reverse the judgment of the superior court wherein that court refused to issue a writ of prohibition. As stated in Donner Finance Co. v. Municipal Court, 28 Cal.App.2d 112 [81 P.2d 1054], at page 114:

“Since prohibition is a preventive rather than a corrective remedy, the writ issues only to restrain the commission of a future act and not to undo an act already done. Therefore it cannot be used to annul a judgment already rendered. (Citations.) ” (Emphasis added.)

The trial on the merits is completed and an appeal therefrom is now pending in the superior court, there are no longer any judicial acts pending in the municipal court to prohibit.

The appellant also contends that this court should hear the appeal on the merits.

An appeal from the judgment of the superior court denying a writ of prohibition will not be tolerated as a means of circumventing the proper appellate tribunal, namely, the appellate department of the superior court.

For the reasons stated above, the relief requested is denied and the order and judgment is affirmed.

Wood, P. J., and Lillie, J., concurred.

A petition for a rehearing was denied May 3, 1960, and appellant’s petition for a hearing by the Supreme Court was denied June 8, 1960.