
    [S. F. No. 4338.
    In Bank.
    June 21, 1905.]
    STERLING D. CARR, Petitioner, v. SUPERIOR COURT OF THE COUNTY OF MONTEREY, Respondent.
    Prohibition—Partition—Interlocutory Decree—Eemeby by Appeal. —A writ of prohibition will not lie to restrain an excess of jurisdiction in an action of partition, where at the time the writ is sought the cause has been tried and submitted, and the judge has ordered an interlocutory decree. In such ease there is a speedy and adequate remedy by appeal from the interlocutory decree.
    PETITION for Writ of Prohibition to the Superior Court of Monterey County. B. Y. Sargent, Judge.
    The facts are stated in the opinion of the court. The petition was denied without appearance for respondent.
    John T. Williams, Jesse W. Bryan, Williams, Bryan & Carr, and J. H. Andresen, for Petitioner.
   THE COURT.

This is a petition for a writ of prohibition to restrain the superior court of Monterey County from further proceeding in a suit for partition of lands, of which it is contended that court has no jurisdiction. It appears from the petition that there has been a hearing and submission of the cause and that the judge has directed counsel for the plaintiff to draw findings and the form of an interlocutory decree.

An appeal from such decree, when entered, will afford the defendant in the action—petitioner here—a plain, speedy, and adequate remedy for any injury it may occasion, and for that reason the writ of prohibition should be denied. If it was clear that the court was proceeding in excess of its jurisdiction, and that a trial involving great expense was yet to be gone through, it might be proper to grant the writ in order to save the parties the useless expense, but here all the expense of the trial has already been incurred, and to review the error and correct the excess of jurisdiction, if any there has been, an appeal is just as plain, speedy, adequate, and effective as prohibition.

Writ denied.  