¶1Petitioner applied to this court for a writ of habeas corpus alleging that he was unlawfully restrained *671of his liberty by the sheriff of Spokane county, in violation of rights guaranteed to him by the constitution of the United States and the constitution of .the state of Washington. An order was issued by this court directing the sheriff to show cause why the writ should not issue, returnable before the superior court for Spokane county.
¶2At the hearing respondent demurred to the petition on two grounds: (1) That the court had no jurisdiction of the person of the petitioner or of the subject matter of the action; and (2) that the petition did not state facts sufficient to constitute a cause of action or to entitle petitioner to the relief sought. The demurrer was sustained and this appeal followed.
¶3At the time of the hearing there was pending in this court an appeal by petitioner from a conviction in Spokane county of first degree forgery. The petition for the writ was based solely on alleged violations of his constitutional rights in the forgery case.
¶4For the purpose of this appeal it will be necessary to treat only the first of the respondent’s contentions, i. e., that the superior court had no jurisdiction of the person of the petitioner or of the subject matter of the action.
¶5Although the appeal from the forgery conviction has since been dismissed, the majority of the court is of the opinion that at the time that the petition for the writ of habeas corpus was originally heard in the trial court, the proceeding was premature, due to the fact that an appeal was pending in this court. The trial court did not then have jurisdiction, and it correctly sustained the demurrer.
¶6The order appealed from is affirmed without prejudice.