Broady v. Jennings

HOUSER, J.

This is an appeal from an order of the superior court denying. a writ of prohibition.

The substance of the facts underlying the matter appear to be that the board of supervisors of San Diego County duly passed an ordinance making it a misdemeanor “for the owner ... of any domestic animal or animals to permit the same to run at large in or upon any land owned by, . . . any person, . . . other than the owner of such animal or animals, unless the consent of the owner of such land and premises is first obtained,” etc.

By a complaint filed in the justice court one J. C. Broady (appellant herein) was charged with a violation of said ordinance. His demurrer to the complaint having been overruled, the justice caused the ease to be set for trial. Thereupon said Broady applied to the superior court of San Diego County for a writ of prohibition directed to the said justice court and to Lacy D. Jennings, as justice of the peace (respondent herein), restraining and prohibiting said court and said justice from the trial of said action. The writ was denied; and thereupon this appeal was taken from such order.

[649]

It is contended by respondent that prohibition will not lie for the reason that, assuming no jurisdiction in the justice court, defendant therein had the right to appeal to the superior court, and that such remedy was plain, speedy, and adequate. While the decisions of this state touching the question are not entirely harmonious, the weight of authority is that where a court is about to enter upon the discharge of some function of which the court has no jurisdiction, prohibition is the proper remedy.

(Terrill

v.

Superior Court,

6 Cal. Unrep. 398 [60 Pac. 38];

Green

v.

Superior Court,

78 Cal. 556 [21 Pac. 307, 541];

Arfsten

v.