
    State ex rel. William Smith, Appellant, v. Henry C. Levens, Recorder of the City of Sedalia, and City of Sedalia, Respondents.
    Kansas City Court of Appeals,
    December 10, 1888.
    Writ of Prohibition: not a writ ok right : no appeal erom denial ok IT. The writ of prohibition is not, like the writ of habeas corpus, a writ of right. It is a writ, the award of which is to be governed by the discretion of the court applied to the facts presented by the individual case. An appeal will not lie from a denial of the writ.
    
      Appeal from, Pettis Circuit Court. — Hon. Richard Field, Judge.'
    Appeal dismissed.
    The case is stated in the opinion.
    
      Jackson & Montgomery and E. J. Smith, for the appellant.
    In State ex rel. v. Police Commissioners, 16 Mo. App. 48, the practice was exactly the same as in this case. The “petition” or application for prohibition being filed ‘ ‘ the defendants demurred generally to this petition and the demurrer was sustained.” This was in the circuit court. An appeal was taken and entertained by court of appeals without doubt or question. See also State ex rel. ■». Allen, 92 Mo. 20; State ex rel v. Horner, 16 Mo. App. 191 ; State ex rel. n. Lewis, 76 Mo. 370; State ex rel. v. Sutterfielct, 54 Mo. 391 ; Me Vey v. McVey, 51 Mo. 406 ; Strouse v. Lrennin, 41 Mo. 289; Hall r. Toung, 3 Mo. 337. It is seen in the cases that no uniform practice is established. But it is made clear that an appeal lies in a case like this when determined as this one was in the court below.
    
      
      Lewis Hoffman and W. 8. ShirTc, for the respondents.
    A writ of prohibition is not a writ of right, but only-issues in the discretion of the court. An appeal from a denial of the writ, will therefore not lie. High on Ex. Leg. Rem., sec. 765 and authorities; People v. West, 89 N. Y. 152.
   Hall, J.

— This was an application to the circuit court for a writ of prohibition to Henry C. Levens, recorder of the city of Sedalia, and said city. The object sought was to prohibit the said recorder and city from further holding cognizance of, or prosecuting a certain prosecution begun and pending before said recorder. The court sustained a demurrer to the application, and an appeal was taken to this court. “The writ of prohibition is not like the writ of habeas corpus, a writ of right. It is a writ, the award of which is to be governed by the discretion of the court applied to the facts presented by the individual case.” State ex rel v. Seay, 23 Mo. App. 629; High on Ex. Leg. Rem., sec. 765; People v. West, 89 N. Y. 152. For this reason an appeal will not lie from a denial of the writ. High on Ex. Leg. Rem., sec. 794; People v. West, supra.

The appeal must, therefore, be dismissed. It is so ordered.

All concur.  