
    State of Missouri ex rel. Wilbur Bickford, Relator, v. E. E. Porterfield, Judge, etc., Respondent.
    
    Kansas City Court of Appeals.
    April 2, 1928.
    
      Manará & Schwimmer for relator.
    
      Joseph 7í. Gorntan and N. F. Heiiman for respondent.
    
      
      Corpus Juris-Cyc References: Prohibition, 32Cyc, p. 613, n. 17; p. 614, n. 2. •.
    
   WILLIAMS, O.-

— Relator applied to. this court for a- writ of prohibition. The court issued tbe preliminary writ. The ease is now before tbe court upon the petition and the return.- The .facts necessary to a decision are:

On or about the 20th clay of October, 1927, the relator was arrested for violation of a city ordinance and charged with the crime .of harboring- a vicious dog. A trial ivas liad in the Municipal Court of Kansas City, Missouri, and a fine of $5 was assessed and the dog ordered to be put to death. Relator filed his affidavit and recognizance for an appeal to the circuit court, of Jackson county, Missouri.- The appeal ivas lodged in "Division A of the criminal court. The city filed a motion to dismiss the appeal. Judge Porterfield, then acting as Judge of tbe Criminal Division A, dismissed the appeal and further ordered that the judgment of the municipal court as to the execution of the dog be affirmed.

Defendant there, relator here, filed his motion for a new trial and in arrest of judgment which motions were sustained. Thereafter the city filed a motion for a new trial based upon the court’s action in sustaining defendant’s motion for a new trial. Before this motion ivas heard Judge Porterfield ivas transferred to Division 7. On the 9th day of January, 1928, the motion was called up in Division 7 before Judge E. E. Porterfield. Relator objected to the jurisdiction of. Judge Porterfield and contended that the appeal ivas lodged in the Criminal Division A of the circuit court. The objections of the relator were overruled. The city’s motion for a new trial, being aimed at defendant’s motion for a new trial, was sustained. The relator’s appeal from the municipal court 'to the circuit court, ivas ordered dismissed and that the judgment of the municipal court be affirmed. After the city’s motion for a new trial ivas sustained and relator’s appeal dismissed, a certified copy of the ruling ivas given to the Chief of Police of Kansas City, Missouri. The dog not being found by the Chief'of Police, a motion ivas filed requiring the relator to show cause why he ivas not in contempt of the court for failure to p.rodiicc the dog.

The defendant filed his affidavit for appeal to the. .Kansas City Court of Appeals and said appeal urns allowed.

The petition in this case alleges, among other things, that Judge Porterfield exceeded his jurisdiction when he affirmed the judgment of the municipal court, and again in citing the relator to sIioav cause why he should not he in contempt of court for not producing the dog.

Tn the return of Honorable E. E. Porterfield, it is not contended that he could do more than dismiss the appeal from the municipal court.

The point is first made .that the Avrit of prohibition *aaM11 not be used to usurp the office of an appeal. This is a correct principle of laAV. [Mills v. Calhoun, 234 S. W. 855.] A Avrit of prohibition is not a Avrit of right, and Avill only he aAvarded where an-inferior tribunal attempts to exceed its jurisdiction. [Mueller Furnace Co. v. Buckner, 229 S. W. 392.]

■While, ordinarily, an appeal will servo the purpose of a review, still in this case if, by an excess of jurisdiction, the dog is killed, an appeal will avail nothing. We think that the case of State ex rel. Ellis v. Elkins, 130 Mo. 80, is authority for holding that an appeal is not the only remedy. Unless the writ is issued the judgment of the criminal court stands affirming the judgment of the municipal court.

We. think that the preliminary rule should be made absolute prohibiting Honorable E. E. Porterfield from taking any action, or ordering any action, under the judgment rendered in the circuit court. And thus far the writ is made permanent.

Frank, C., concurs.

PER CURIAM: — The foregoing* opinion by "Williams, C., is adopted as the opinion of the court.

Bland and Arnold, JJ., concur; Trimble, P. absent.  