109 P. 884 | Cal. | 1910
Lead Opinion
A judgment in favor of defendants, entered upon the sustaining of their demurrer to the complaint, was reversed by this court.(Estudillo v. Security L. T. Co.,
The respondents make a preliminary objection to a consideration of the appeals on the ground of the alleged insufficiency of the record on appeal. An examination of this point is unnecessary, as we have reached the conclusion that the orders appealed from may be sustained on the merits.
The nature of the case is set forth, in substance, in our opinion on the former appeal. The action was pending in Riverside County. After the issues had been framed the plaintiffs employed, as one of their attorneys, a gentleman related to the judge of that county in such manner as to disqualify the latter. (Code Civ. Proc., sec. 170, subd. 2.) Said judge thereupon requested Hon. Frank F. Oster, judge of the superior court of San Bernardino County, to try the action. Judge Oster came to Riverside on February 5, 1907, called the case for trial, heard the testimony offered by the respective parties, and, after ordering the cause submitted on briefs to be filed, returned to his home in San Bernardino. On April 9, 1907, he signed, at San Bernardino, written findings of fact and conclusions of law, with an order that judgment be entered in accordance therewith. These papers he sent to the clerk of the superior court of Riverside County, with directions to file the same. The clerk followed such directions, and, on April 19, 1907, entered judgment in favor of defendants, in accordance with the conclusions of law. Judge Oster was not within the county of Riverside on the ninth day of April, when he signed the findings, nor on the nineteenth day of April, when judgment was entered.
Subsequently the plaintiffs moved to strike from the files the findings of fact and conclusions of law, and to vacate the judgment entered thereon. The motion was denied. One of the appeals now before us is an appeal from this order denying the motion to vacate the judgment. (There appears to be no appeal from that part of the order refusing to strike the findings and conclusions from the files.)
The argument in support of this appeal is that the rendition of judgment is a judicial act; that such judgment must be rendered by a court, and not by a judge acting out of court, and more particularly outside of the territorial jurisdiction for which the court is organized. It would be of little avail to analyze these propositions, or to undertake to decide, as an original question, how far they are applicable to the facts *69
before us. This court has, on two occasions, upheld the validity of judgments ordered and entered under circumstances precisely like those here presented. In Comstock Q.M. Co. v. SuperiorCourt,
In the first of these cases it was held that a judgment like the one here under consideration was not void as being without or beyond the jurisdiction of the court in which the action was pending. In the second, the holding was that the judgment was not even erroneous or irregular, and could not be successfully assailed on direct appeal. It follows that the trial court *70 did not err in refusing to vacate the judgment in the case at bar.
Another of the appeals is from an order refusing a change of venue. The motion to this end was made after the trial and judgment, and pending proceedings on motion for a new trial. It was based upon the alleged bias and prejudice of Judge Oster. We do not deem it necessary to set forth the averments of the affidavits upon which plaintiffs relied to support this motion. If they contained any statements tending to show bias on the part of the judge, these statements were fully met by counter affidavits. The finding of the trial judge on conflicting affidavits is conclusive on appeal, even though the question in controversy be the disqualification of the judge himself. (Swan
v. Talbot,
The third appeal is from the order denying a new trial. It appears from the bill of exceptions (which was apparently intended to set forth all the proceedings subsequent to judgment in the court below), that the plaintiffs prepared a proposed statement to be used on motion for new trial, and that the trial court, sustaining the objection of the defendants, refused to settle the statement. The appellants argue that this was error. But if it was, the remedy obviously is by proper proceedings to compel the settlement, not by appeal from the order denying the motion for new trial.
The notice of intention to move for a new trial stated that the motion would be made "upon a statement of the case, upon the minutes of the court, upon the pleadings and papers filed *71
in said cause, and upon affidavits hereafter to be prepared and filed." If the motion, notwithstanding the attempt to prepare a statement in advance, be regarded as made on the minutes of the court, the bill of exceptions may, perhaps, be treated as a statement "subsequently prepared," as provided by section
The record does not sustain the contention that the court, in making its findings, disposed of legal issues. A reading of the findings, in connection with the pleadings, the conclusions of law, and the decree, shows clearly that the court undertook to dispose of the equitable issues alone. But if there were findings on other issues, the error, assuming it to have been one that could be raised on the specifications of the notice, was not prejudicial. The plaintiffs, having failed to establish their *72 equitable grounds for setting the sale aside, were not entitled to any relief, and judgment in favor of the defendants necessarily followed, regardless of any legal issues presented. The motion for new trial was, therefore, properly denied.
The orders appealed from are affirmed.
Angellotti, J., concurred.
Concurrence Opinion
I concur. I think, however, that the opinion in Comstock v.Superior Court,
Hearing in Bank denied. *73