61 P. 779 | Cal. | 1900
Lead Opinion
This is an original petition in this court for a writ of prohibition prohibiting and restraining the respondent from any further acting as judge in a certain action pending in the superior court of the county of Alameda, in which the Contra Costa Water Company is plaintiff and these petitioners are defendants.
The facts necessary to be stated are these: The said action of the Contra Costa Water Company against these petitioners (the City of Oakland et al.) was brought to restrain the defendants therein from enforcing a certain ordinance fixing the rates to be charged for water furnished by the said Contra Costa Water Company to the city of Oakland. It was brought in the superior court of the county of Alameda, and assigned to Department Three of that court, of which the Hon. F.B. Ogden is presiding judge. When the pendency of this action was first called to the attention of Judge Ogden, in April, 1900, he suggested to counsel for the respective parties that he considered himself disqualified to try the case because he was a rate-payer for water furnished by said water company, and suggested that counsel agree upon some other judge to try the case. He suggested, also, that two of the other judges of Alameda county were also disqualified for the same reason; that Judge Green of said county was not disqualified, but he was too busy and crowded with other cases to try said case; but that if counsel consented the case might be transferred to Judge Green and he could select another judge. To this the attorney for the defendants (petitioners here) stated that he did not desire the matter to take that course, but did desire that Judge Ogden himself should select the judge; and that he (the attorney) did not desire to take the responsibility of agreeing upon another judge, but would consent to whatever judge might be named by Judge Ogden. The matter was mentioned several times with the same result; and on May 7, 1900, Judge Ogden, with the knowledge and consent of the attorney for the defendant therein, as well as with the *100 consent of the attorney for the plaintiff, wrote the following telegram to be sent to the respondent herein:
"May 7, 1900.
"To Judge E.C. Hart, Sacramento, Cal.:
"All counsel in case of Contra Costa C.W. Co. v. City of O., as well as judges of this county, unite in request that you sit in said cause. Judge here is disqualified. If you accept, can you be here Wednesday morning to hear demurrer?
"F.B. OGDEN."
This telegram was sent to the other three judges of the superior court of Alameda county and was signed by Judge Green and Judge Ellsworth, the other judge not being found. It was returned to Judge Ogden and a pencil mark was made across the names of the other two judges, Judge Ogden thinking that the dispatch ought to be sent in his name alone. This telegram was delivered to the attorney of the defendant and one of the attorneys of plaintiff in said case, and was by them taken to the telegraph office and forwarded to the respondent at Sacramento. This selection of the respondent, Judge Hart, was consented to by the attorney of the defendants; this fact appears not only upon the face of the telegram itself, which was delivered to the attorney for the defendants and by him and the other attorney forwarded, but also by the testimony in the case, which was submitted by consent on the hearing of this application. It was thought best to get a judge from Sacramento because, as Sacramento had its own waterworks, there were no questions in that county about fixing rates. The respondent Hart immediately telegraphed to Judge Ogden that he would accept the appointment and would be in Oakland on the next Wednesday morning, and was there at that time. Judge Ogden accompanied the respondent to the bench of the court and introduced him to the attorneys as Judge E.C. Hart, who had been selected to try the case. No objection whatever was made by the attorney for the defendants therein to Judge Hart sitting in the case; and Judge Ogden caused the clerk of the court to enter the following order: "The demurrer and the motion herein coming on regularly this day for hearing, whereupon Hon. E.C. Hart, judge of the superior court of Sacramento, was requested by counsel for the plaintiff and defendant herein to act *101 in the above-entitled cause, three of the judges of the court being disqualified, and Judge Hart having consented thereto, it is ordered that the matters herein be and the same are hereby continued to Wednesday, May, 19, 1900." A demurrer to the complaint, having been interposed, was argued before Judge Hart, who took the same under advisement and afterward made an order overruling the same, and giving the defendants certain time to answer. Other matters were submitted and considered, without any objection to the respondent acting, before additional counsel was retained by the defendants therein; afterward additional counsel was employed by defendants, and "thereafter all of said attorneys and counsel for the defendants in said cause took part in several interlocutory applications in the same before the Hon. E.C. Hart without any objection." Thereafter a motion was made by defendants to compel the plaintiff to submit certain books to inspection, and this motion was submitted to Judge Hart, who afterward denied the same, but on application of defendants added to the order that it was made without prejudice to a renewal of the motion. This occurred about the 11th of June, 1900, down to which time no objection whatever had been made to Judge Hart sitting in the case; but on June 12, 1900, for the first time, counsel for defendants in said cause objected to the further action of respondent as judge in the cause, and to his hearing or determining any matter or proceeding therein; and after testimony and argument the objection was overruled by respondent. Thereafter this present proceeding for a prohibition was instituted in this court.
The position of the petitioners here is that Judge Ogden was disqualified from trying the case because he was a water rate-payer; that for the same reason he had no jurisdiction to request another judge to sit; and that his act in requesting the respondent to sit as judge of the superior court of Alameda county was without jurisdiction, and that the consent of the parties could not give it validity. As both sides assume that Judge Ogden was disqualified to try the case because he was a rate-payer, we will assume that proposition to be true for the purposes of this case, although we are not to be understood as definitely determining that question. Neither are we at all inclined to hold that Judge Ogden, even if disqualified *102
to try the case, could not have legally called in the respondent to hear and determine the case in question without any request or consent of the parties, for the constitution provides, without any qualification, that "a judge of any superior court may hold a superior court in any county at the request of the judge of the superior court thereof"; but it is not necessary to consider that proposition, because here the respondent was called to try the case with the consent, and practically at the request of the petitioners. This is not a case to which the rule applies that consent cannot give jurisdiction. It is, for instance, not a case like Bates v. Gage,
The foregoing views make it unnecessary to consider the question whether or not Judge Green, who was free from all color of disqualification, did also request respondent to act as judge of the superior court of Alameda county in the case in question. We see nothing in the point attempted to be made that when Judge Ogden sent the dispatch to the respondent he thought that the latter was the person who had formerly been attorney general of the state. He intended to request the person who was superior judge of the county of Sacramento; and, when the latter appeared at Oakland to take his seat as judge in the superior court there, the events which then took place constituted of themselves a request that the respondent *104 act as judge — all of which was with the additional knowledge and consent of counsel for petitioners.
Respondent had no intimation that he was objectionable to either party until June 12th. If petitioners, instead of consenting that respondent be called in, and really requesting it to be done, had objected to him before any proceedings were had in the case, he would have been free to refuse to act if he had preferred to take that course; but in the present condition of the case it would, no doubt, be somewhat embarrassing for him to retire without consent of both parties.
The prayer of the petitioner is denied, and the proceeding is dismissed.
Concurrence Opinion
I concur in the judgment and generally in the foregoing opinion, but an unwilling to assent to the view intimated therein that Judge Ogden could have called in another judge of his own selection without the consent of the parties. The course that should have been pursued was that originally proposed by Judge Ogden, viz., to send the cause to Judge Green's department, not because the case was governed by the express provisions of subdivision 4 of section
But it does not follow from this that a disqualified judge cannot, with the express consent of the parties, call in a judge from another county to try the cause, instead of transferring it to another county for trial. In case of a change of venue it is made the duty of the judge to transfer the cause to the county agreed upon by the parties, and there is no reason why they should not be allowed to agree that, instead of changing the place of trial, the judge by whom they are both willing the cause may be decided should come to the county where it is pending and conduct the trial there. The convenience of witnesses and the saving of expense would often be controlling reasons for such a course.
But the contention on the part of petitioners is that the plain words of the statute take from the disqualified judge *106
the power to invite another judge to preside in his place, even with the express consent of the litigants. To do so, they contend, would be to "sit or act" in the case in a matter not included in the exceptions enumerated in section
In this case I consider that Judge Hart was invited by consent of the parties, and that at all events it was too late to object to his acting in the cause after the parties had voluntarily argued and submitted the demurrer to his decision. When another judge has been invited to try a cause by a disqualified judge the remedy for a dissatisfied litigant is to move for a change of venue. If he waives that remedy, if he consents either expressly or impliedly to the selection of the judge so invited, he cannot claim that his trial of the cause is an excess of jurisdiction. *107