Everett

This is a proceeding instituted by the district attorney of Calaveras county to secure a writ of prohibition restraining the judge of the superior court of said county from settling a bill of exceptions in the above-entitled cause. The application is based upon the ground that the said judge extended the time within which defendant might prepare and present his bill beyond the statutory period, and that "neither the defendant nor his counsel, nor any person in his behalf, either made, or presented or filed, as required by section 1174 of the Penal Code, any affidavit of any kind or character with the Judge of the said Superior Court or with the District Attorney, or with any person for said Judge, showing any necessity or reason for any extension of time within which to prepare and present said bill of exceptions, and that neither the defendant nor his counsel, nor any person on his behalf notified or served upon the District Attorney any notice of any kind or character at any time prior or subsequent to the securing of the order extending the time in which to prepare and present said bill of exceptions." There were three separate orders made, the first extending the time for…

I concur. In People v. Blis, 3 Cal.App. 162 , [ 84 P. 676 ], the question as to whether, prohibition is the appropriate remedy in such a case as this was not pressed nor was it seriously considered by the court. The main object of both parties was to obtain a construction of the statute for the first time brought to the attention of the appellate court. *Page 434 There is a growing disposition, which should not be encouraged, to take advantage of original writs, notwithstanding that by an appeal a plain, speedy and adequate remedy is furnished. There are no special or peculiar circumstances in the present case which should take it out of the operation of the rule governing the issuance of the writ.