Reset A A Font size: Print

District Court of Appeal, Second District, Division 1, California.

Virginia LAMBERT, Plaintiff, Petitioner, v. MUNICIPAL COURT OF LOS ANGELES JUDICIAL DISTRICT, County of Los Angeles, State of California; People of the State of California, Defendants, respondents.

Civ. 24010.

Decided: October 21, 1959

Samuel C. McMorris, Los Angeles, for plaintiff-petitioner. Harold W. Kennedy, County Counsel and Donald K. Byrne, Deputy County Counsel, Los Angeles, for defendant-respondents.

Petitioner seeks a writ of prohibition to prevent any further proceedings in the municipal court. She contends that the trial court is without jurisdiction in the matter for the reason that she has been denied her right to a speedy trial as guaranteed by the Constitution, art. 1, § 13.

For the reasons hereinafter stated, we will not at this time pass upon the merits of the case.

On June 30, 1959, a petition for writ of prohibition was filed in the Appellate Division of the Superior Court of Los Angeles County. The petition was denied in that court on July 7, 1959. After filing notice of appeal from the order of the Appellate Division of the Superior Court, she then filed this petition in this court for the same relief and on the same grounds.

This she cannot do. ‘It is contrary to the policy of the law and to the principles of orderly procedure, that a party who has invoked the jurisdiction of one court and who has a right of appeal to a higher court, should be permitted to substitute for such appeal a second and like application to the higher court as a court of original jurisdiction. If such repeated applications were recognized, it would follow, on the same principle, that, on denial of the application made to this court, the dissatisfied petitioner could immediately by permitted to apply to the Supreme Court and perhaps obtain from that court the original writ which he desires, instead of applying to the Supreme Court in due course for a rehearing of this present proceeding. We think that it is not to be permitted that a litigant should thus experiment with the several courts in respect to their concurrent original jurisdiction.’ Ogden v. Board of Trustees, 74 Cal.App. 159, at page 161, 239 P. 855.

The alternative writ of mandate heretofore issued is discharged and the petition is denied without regard to its possible merits in other respects.

SHEA, Justice pro tem.

FOURT, Acting P. J., and LILLIE, J., concur.