231 P. 726 | Cal. | 1924
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *113 The petitioner seeks a writ of mandate to compel the respondent, as judge of the superior court in and for the county of San Diego, to proceed with a hearing and determination of a demurrer to an amended answer and amended cross-complaint in an action pending in said court. The matter is submitted on a general demurrer to the petition.
On the fifth day of March, 1923, the petitioner commenced an action in the superior court of San Diego County entitled: "The City of San Diego, a Municipal Corporation, Plaintiff, v. Cuyamaca Water Company, a Corporation, The Cuyamaca Water Company, a Copartnership, Ed Fletcher and William G. Henshaw, as Surviving Partners of The Cuyamaca Water Company, a Copartnership, W.S.K. Brown, Executor of the Last Will of James A. Murray, Deceased, Ed Fletcher and William G. Henshaw, Defendants." The purpose of that action was and is to quiet the title of the plaintiff as the successor of the Mexican Pueblo of San Diego to its alleged prior and paramount right to the use of all of the *114 waters of the San Diego River and its tributaries, including the surface and surface flow, from the source to the mouth thereof, so far as the same may be reasonably necessary to meet the demands of the petitioner and its inhabitants for municipal, domestic and irrigation uses. On April 19, 1923, the parties to said action signed and filed a written stipulation that they would raise no objection to the respondent, or to the Honorable W.P. Cary, another judge of said court, sitting or acting as judges in said action upon the ground that they were disqualified from so sitting or acting by the provisions of subdivision 5 of section 170 of the Code of Civil Procedure.
On the seventh day of May, 1923, the respondent entered an order permitting the city of El Cajon, a municipal corporation in said county, to file in said action a complaint in intervention wherein that city, on behalf of its inhabitants, is asserting the right to the continued use of a portion of the waters of the San Diego River and adversely to the claims of the city of San Diego.
On the eighteenth day of June, 1924, one Carrol H. Smith served and filed a notice of motion for leave to intervene in said action. Leave was granted and Smith filed his complaint in intervention wherein, as a resident, citizen, and taxpayer of the city of La Mesa, a municipal corporation in said county, he seeks to preserve the rights of said city and of himself, as an inhabitant thereof, in and to said waters, adversely to the claims of the plaintiff. Smith has also served and filed a notice of motion and demand for change of place of trial pursuant to section 394 of the Code of Civil Procedure and said notice and demand are still pending.
Also under date of June 18, 1924, one of the judges of the said court, other than the respondent, by written order granted to the La Mesa, Lemon Grove and Spring Valley Irrigation District leave to file a complaint in intervention in said action. In this complaint it is alleged, among other things, that the La Mesa, Lemon Grove and Spring Valley Irrigation District is an irrigation district, corporation, and public agency organized under the laws of this state for the purpose of impounding the waters of the San Diego River and distributing the same for irrigation and domestic purposes to the inhabitants of said district and is situated in the county of San Diego, but outside of the limits of the *115 city of San Diego; that the Cuyamaca Water Company is a public utility organized for the purpose of appropriating, diverting, and taking waters from the San Diego River and distributing the same for irrigation and domestic use, both public and private, within the city of San Diego; that the Cuyamaca Water Company has for more than forty years furnished water to said irrigation district and to the inhabitants thereof for domestic and irrigation uses; that the irrigation district has acquired certain rights and interests in and to a portion of the waters of the San Diego River and asserts the same adversely to the claims of the plaintiff; that on the fifth day of April, 1924, the irrigation district secured an option from the Cuyamaca Water Company to purchase from the water company its water system on said river and has employed engineers for the purpose of preparing surveys and data incident to the purchase of the property of the water company and that the irrigation district has at great expense acquired valuable property and water rights along the said San Diego River. The irrigation district denies the alleged claims of the city of San Diego and prays that it be adjudged to be the owner of the absolute and paramount right to so much of the water of said river as will meet its requirements.
On the nineteenth day of June, 1924, the irrigation district filed written objection to any judge of the superior court of San Diego County sitting or acting as judge in said cause on the ground that under subdivision 5 of section 170 of the Code of Civil Procedure all of the judges of said court are disqualified from acting or sitting as judge in the hearing or determination of any question of law or fact in said action. Accompanying the written objection was an affidavit showing the irrigation district to be one of the public agencies contemplated by subdivision 5 of said section 170
To the original complaint in said action the defendants interposed demurrers which were sustained. To an amended complaint filed in due course the defendants filed an answer and cross-complaint. Following an order sustaining a demurrer thereto the defendants filed an amended answer and an amended cross-complaint to which the plaintiff interposed a demurrer and moved the court to hear and determine the same. *116
On the twenty-fifth day of June, 1924, following argument upon the objection to the qualifications of all of the judges of said court to sit or act in said cause, the respondent judge made and entered an order to the effect that a proper case had been presented showing that the respondent and all other judges of the superior court of said county were disqualified to proceed further in said action and directed the clerk to certify the action of the court to the Governor to the end that a judge other than a judge of the superior court of San Diego County might be secured to hear and determine the issues in said action. The demurrer to the defendant's amended answer and amended cross-complaint is still pending and the respondent has refused to pass upon the same for the sole reason that he has decided that he is disqualified to act thereon. At the request of the plaintiff city of San Diego, the clerk was instructed by the court to delay the request to the Governor so that the plaintiff might have the opportunity to prosecute this proceeding.
The propriety of the orders of the trial court granting leave to the city of El Cajon, Carrol H. Smith, and the La Mesa, Lemon Grove and Spring Valley Irrigation District to file complaints in intervention will not be inquired into in a proceeding in mandamus (People v. Sexton,
Subdivision 5 of section 170 of the Code of Civil Procedure provides that in any action brought in the superior court by or against any reclamation board of the state of California or any reclamation, levee, swamp-land, or drainage district, "or any public agency" affecting or relating to any *118
real property, etc., the judge of the superior court of the county in which such real property is situated shall be disqualified to sit or act, and such action shall be heard and tried by some other judge of the superior court requested to sit therein by the Governor, unless the parties to the action shall sign and file a stipulation in writing waiving such disqualification. An irrigation district is one of the "public agencies" contemplated by the code section referred to (Lindsay-Strathmore Irr. Dist. v. Superior Court,
There is also much force in the contention of the respondent that the stipulation of the original parties, of date April 19, 1923, waiving the disqualification of the respondent and one of the three other judges of said court was ineffectual for any purpose and a nullity. At the time the stipulation was signed and filed none of the public agencies mentioned in or contemplated by subdivision 5 of said section 170 was a party to said action. The city of San Diego was the party plaintiff and it may have been thought at that time that a city was a "public agency" as contemplated by the section. The stipulation was signed and filed before the decision in the case of Tocque v. Superior Court,
It is conceded by the petitioner that it has no vested right to have said cause tried before any particular judge, but it is insisted that the respondent has entered an order disqualifying himself and all of the judges of said court because of a mistaken and erroneous view of the law under the undisputed facts and that, therefore, the respondent may be compelled to set aside said order and proceed with the hearing *120
of said demurrer as an act which the law specifically enjoins as a duty resulting from his office (sec. 1085, Code Civ. Proc.). There is no doubt that a judge of the superior court may be compelled by a writ of mandate to proceed with the trial of either an issue of law or fact in an action rightly pending in his court when he refuses without legal reason so to do (Tomkin
v. Harris,
It is contended by petitioner that all of the facts necessary to a proper determination of the claims of the interveners is within the judicial knowledge of the court and that, therefore, this court should now determine that the claims of all of the interveners are subject and subordinate to the alleged rights of the city of San Diego. Assuming, but not deciding, that this court could take judicial notice of all the *121 matters referred to, we would not, if it were otherwise proper for us to do so, undertake to adjudicate such alleged rights upon the record before us, consisting, as it does, in the main of a mere citation of state and federal authorities and references to land grants and orders not set out in the record.
The peremptory writ is denied.
Lawlor, J., Lennon, J., Seawell, J., Waste, J., and Richards, J., concurred.
Concurrence Opinion
I concur in the judgment upon the ground last stated in the opinion, namely, that a party litigant has no vested or legal right to have his case tried and determined by any particular judge. Inasmuch as the court in which this action is pending, to wit, the superior court in and for San Diego County, has at no time refused to proceed with the hearing and determination thereof, but, on the contrary, stands ready and willing to proceed therein, functioning by and through a judge who is in every way qualified, I concur with the conclusion that petitioner is not entitled to a writ of mandate to compel the respondent judge to act therein.