PECK v. MUNICIPAL COURT OF CITY AND COUNTY OF SAN FRANCISCO ET AL (1942)

District Court of Appeal, First District, Division 2, California.

PECK v. MUNICIPAL COURT OF CITY AND COUNTY OF SAN FRANCISCO ET AL.

Civ. 12187.

Decided: July 06, 1942

Simeon E. Sheffey, of San Francisco, for petitioner. James M. Thomas and Edmund J. Holl, both of San Francisco, for respondents.

An alternative writ of prohibition was issued to restrain further proceedings under an ex parte order appointing a receiver in an action to dissolve a partnership pending in the municipal court. The alternative writ was issued and heard upon the authority of A. G. Col Co. v. Superior Court, 196 Cal. 604, 238 P. 926; Evans v. Superior Court, 14 Cal.2d 563, 96 P.2d 107, and similar cases holding that prohibition was an appropriate remedy where the order was in excess of the court's jurisdiction, though a remedy by appeal was provided by statute. The question whether an appeal is “a plain, speedy, and adequate remedy” is one to be determined on the facts and circumstances of each case. The petitioner has failed to show that his right of appeal to the superior court is not such a remedy.

For these reasons, the petition is denied and the alternative writ is discharged.

NOURSE, Presiding Justice.

STURTEVANT, J., concurred.

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