Hamberger

I dissented from the order denying a rehearing of this cause at the time it was made, and desire now to state the reasons for my dissent. It seems plain to me that the decision of the district court of appeal—which is now finally approved by the court of last resort—will, unless reversed, deprive the citizens of California of a right secured to them by the constitution; the right, that is to say, to invoke the judgment, not only of the district court of appeal, but of this court, in a large and important class of eases in which they may deem themselves aggrieved by usurpation or excess of judicial authority. The effect of the decision here is to establish the doctrine that when a justice of the peace, police magistrate or other inferior officer or tribunal is assuming jurisdiction of a civil action in which a final appeal lies to the superior court, it matters not how plain or how doubtful the question as to his jurisdiction of the subject matter or of the person of the defendant may be, such defendant can never have a hearing upon that point in either the district court of appeal or in this court, and this because his right to appeal to the superior court from the ‘1 judgment…

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.…