Civ. No. 1417.
February 3, 1914.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. F. H. Dunne, Judge.
The facts are stated in the opinion of the court.
A. S. Newburgh, for Appellant.
C. M. Fickert, District Attorney, and Maxwell McNutt, for Respondents.
On petition for rehearing.
The petition for rehearing must be denied. The original application for the writ of prohibition avers the issuance and threatened execution of a search warrant, by which the property of the petitioner will be seized and taken into the possession of the magistrate issuing the process. The record shows that before the alternative writ was issued the search warrant had already been executed and the property taken into the possession of the magistrate. Its office was therefore fulfilled; and there was nothing for the court to prohibit unless it should appear that the magistrate was undertaking to do, or was assuming jurisdiction to do, some further act with reference to the property; but the record affirmatively and conclusively shows that there is no judicial act under the statute relating to search warrants which the magistrate is either assuming to do or can do, except the act of restoring the property to the petitioner upon his demand. He has made no such demand; but if he should do so, and the demand should be refused, it would appear upon the facts stated in the record that he has a plain, speedy, and adequate remedy in an action to recover its possession, with damages for its unlawful detention. In the absence of any showing that the writ here sought is desired to prohibit any judicial action on the part of the magistrate except that which had been already consummated before the alternative writ was issued, the court adheres to its view that the matters presented upon this appeal are moot questions, which this court is not called upon to decide.