This is an application for a writ of prohibition. Heretofore the plaintiff had in his possession a large number of letters, cards and telegrams. There were from one thousand to two thousand of them. Some were originals, others copies. Some were letters received by the plaintiff from his mother, other letters received by him from his wife. Some were copies of letters written by the plaintiff to his mother, or to his wife, or to some other person. The plaintiff kept the documents under lock and key either I in his desk or in a trunk or chest. While the said dоcument? were so in his possession the plaintiff’s wife, who at that time was estranged from him, opened the receptacles containing said documents and took out instruments variously estimated at from one thousand to. two thousand and delivered thjem to Edward Rothehild in San Francisco. He delivered them to George Kohn, since deceased, the father of the рlaintiff who was also estranged from the plaintiff. Mr. Kohn delivered them to Mr. Jerome B. White, an attorney at law, with instructions to examine the documents and advise George Kohn whether said dоcuments contained such information as would *461 furnish the evidence to justify an action for damages against Mrs. George Kohn for the alleged cause of alienating the affectiоns of this plaintiff, her son, from Dorris Kohn, her daughter-in-law. Mr. White made the examination and reported adversely. While the documents were in his possession, Mr. White marked each one with a letter and number, and as so indexed he later produced them in court together with a complete written description. He also caused photostatic copies of each document to be made. Later George Kohn died while the said documents were still in the possession of Mr. White. George Kohn left a will by the terms of which he left nothing to this plaintiff, his son. In thе will he named Crocker First National Bank of San Francisco and Jerome B. White as executors of the will. They were appointed as special administrators and as such took possession of said documents and now hold them. This plaintiff filed a contest against the petition to' admit the will of George Kohn to probate. That contest is at issue and will soon be tried.
This plaintiff commenced an action in replevin against the Crocker First National Bank of San Francisco and Jerome B. White to recover the possession of said documents. On the trial the plaintiff called Mrs. Dorris Kohn who testified she broke open plaintiff’s locked trunk and his locked desk during the absence of the plaintiff, took out the documents in suit, put thеm in a suitcase and mailed it to Mr. Edward Roth-child. He took the stand and testified that he turned the suitcase and its contents over to Mr. Jerome B. White. The latter was called as a witness by the рlaintiff and testified that he received from Mr. Rothchild the suitcase and its contents and produced the same in court. After the plaintiff rested his ease the defendants made a motion for a nonsuit. The motion was denied and thereupon the defendants called the plaintiff to the stand and, after some preliminary examination, proceeded to interrogate the witness as to each document, thereupon to offer the document in evidence and read its contents into the record. This plaintiff objected to all questions having thе effect of giving publicity to the contents of said documents and objected to said documents being read into the record but his objections were overruled. After five or more of said documents had been read an adjournment of said hearing was granted and the plaintiff commenced this proceeding.
*462
The briefs of counsel cite many authorities from outside of the state of California. As the statutes on which they were - decided were not identical with the statutes of this state, many matters are presented that are not helpful in the instant litigation. The plaintiff contends that the trial (jourt is depriving him, and threatening to deprive him, of his constitutional rights. He cites section 19 of article I of the Constitution. That section provides: “The right оf the people to be secure in their persons, houses, papers and effects, against unreasonable seizure and searches, shall not }>e violated; ...” Section 22 оf article I provides: “The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.” Even when a statute containing prohibitions is the embodiment of the law, the doing of an act by a court oír other tribunal in violation of the terms of such prohibitions is an excess of jurisdiction.
(Modoc Land etc. Co.
v.
Superior Court,
Nothing said above is in any way opposed to anything decided in
People
v.
Mayen,
The plaintiff cites many authorities to the effect that prohibition may properly be granted where the court or tribunal sought to be restrained is about to make an unauthorized application of judicial power in a matter otherwise properly cognizable by it. (50 C. J. 666; 21 Cal. Jur. 584; High’s Extraordinary Remedies, 3d ed., 734.) The defendants do not challenge that general rule but they assert that entertaining this application while the hearing of the replevin action is on trial will be a dangerous precedent. We think not, but necessary and proper under the facts involved.
*464
Nor do we find that the plaintiff has an adequate remedy at law. The defendants assert he may dismiss the replevin action and that such dismissal is such a remedy.
(Yolo Water etc. Co.
v.
Superior Court,
It is therеfore ordered that a peremptory writ of prohibition issue as prayed for in the petition on file herein.
Spence, J., concurred.
A petition by respondents to have the cause heard,in the Supreme Court, after judgment in the District Co|urt of Appeal, was denied by the Supreme Court on May 11, 1936.