115 Cal. 694 | Cal. | 1897
Appeal from an order changing the place of trial.
The motion was made upon the ground that the judge of the court was disqualified by reason of being related within the third degree to one of the attorneys for the defendants. At the hearing of the motion it was made
Whether a judge is disqualified to sit or act in an action or proceeding pending in his court is a question of law depending upon the existence of the facts which are necessary to constitute such disqualification, and, although the decision of the question may affect the judge who makes the decision, the rules for determining the existence of the facts are the same as though the decision affected another person than the judge. Whether Mr. Hudner was an attorney of the defendants was to be determined by Judge Breen from the matters presented to him at the hearing of the motion, and if there was any conflict in the affidavits of the respective parties his decision upon such conflict is not open to review. It was not requisite that Mr. Hudner should be an attorney of record in the case, nor did his relation as attorney for the defendants depend upon their obligation to compénsate him for his services, or upon the continuance of his partnership with Mr. Briggs. The
The court was not precluded from making the order by reason of a former application having been denied. The doctrine of res judicata is not applicable to motions in a pending action. (Ford v. Doyle, 44 Cal. 635; Bowers v. Cherokee Bob, 46 Cal. 279.) A previous denial of the same motion may be a sufficient reason for the court to refuse to entertain it again (Code Civ. Proc., sec. 182); but this is a matter which is addressed to its discretion, and it will be presumed to have properly exercised its discretion if it permits the motion to be presented a second time. (Hitchcock v. McElrath, 69 Cal. 634.)
The order is affirmed.
Van Fleet, J., and McFarland, J., concurred.