Schoenfeldt v. Municipal Court

BRAY, P. J. Respondent moves to dismiss the appeal or in the alternative to augment the record.

On June 29, 1959, respondent court found appellant guilty of a misdemeanor (violation of Veh. Code, § 502), and pronounced judgment. No appeal was taken therefrom. July 17, appellant filed in the San Francisco Superior Court a petition [749]for writ of prohibition to prohibit said municipal court from taking any further steps to enforce the judgment on the ground that section 502, Vehicle Code, is unconstitutional. The superior court denied the petition and appellant appealed. Thereafter respondent municipal court moved this court for dismissal of the appeal or in the alternative to augment the record to include certain portions of the clerk’s transcript of the proceedings in the municipal court.

The grounds of the motion to dismiss are that petitioner had a plain, speedy and adequate remedy by appeal, and that since judgment has been pronounced and no appeal taken therefrom, there remains no further judicial function to be performed by the municipal court, and the issuance of a writ of prohibition now (should we hold that the superior court must issue such writ) would serve no useful purpose.

It is obvious that appellant has pursued the wrong remedy and hence the motion to dismiss the appeal must be granted.

Prohibition will only lie where the party has “not a plain, speedy, and adequate remedy in the ordinary course of law.” (Code Civ. Proe., § 1103.) All of the matters which appellant has attempted to raise on her application for writ of prohibition could and should have been raised upon an appeal from the judgment of the municipal court.

Duke v. Justice’s Court (1940), 42 Cal.App.2d 178 [108 P.2d 707], is directly in point, except that it dealt with a civil rather than a criminal proceeding. A money judgment was entered against the appellant in the justice’s court from which no appeal was taken. Thereafter the appellant sought in the superior court a writ of prohibition to restrain the justice’s court from taking any further proceedings to enforce the judgment. The appellant appealed from the judgment denying the writ. The reviewing court held that as the appellant had failed to accept the plain, speedy and adequate remedy afforded him by his right of appeal, prohibition would not lie. The court pointed out that a writ of prohibition “cannot be used to serve the purpose of a writ of certiorari for the review and nullification of a judicial act already performed.” (P. 179.)