91 P. 100 | Cal. | 1907
Petitioner was and is the attorney at law of John Bashore, who is plaintiff in two actions pending before the superior court of Tulare County. John Bashore made application for a change of judges in these actions, supporting his application by his own affidavits, verified before petitioner as notary public, and by petitioner filed with and presented to the court. Two of these affidavits were filed in *459 connection with separate applications for change of judges in one of the cases, while the third was presented in support of the application for a change of judges in the other case. Both actions are still pending. The first two applications were met with counter-affidavits and denied. The third affidavit contained substantially all of the alleged defamatory and contemptuous matter embodied in the preceding affidavits, and went even further in attacking the integrity of the judge. Upon presentation of this last affidavit, the judge, believing that he could not with self-respect longer sit at the hearing of these causes, announced that John Bashore could have a change of judges in any case pending in his court, whether theretofore denied or not, upon application, and without the filing of any affidavit. He then issued a citation to petitioner to show cause why he should not, as the attorney for John Bashore and as an officer of the court who had presented these scandalous affidavits, be punished for contempt in so doing. This citation to show cause set forth at length the proceedings had in the matter and the language of the affidavits which the court regarded as unwarranted, contemptuous, and deliberately designed to bring into disrepute himself as judge and the court over which he presided.
Petitioner then applied for and obtained from the district court of appeal an alternative writ of prohibition. The questions involved were considered by that tribunal, and, upon disagreement of the judges, the proceedings were certified to this court.
Dealing first with the questions of procedure which petitioner presents, this contempt (assuming for the moment that a contempt was actually committed) was one which took place in the immediate view and presence of the court, and the citation to show cause, which was timely made, did not require an affidavit to support it. The second and third affidavits were filed and presented to the judge in open court. In McCormick v. Sheridan, (Cal.) 20 P. 24, an attorney had presented to this court a petition for a rehearing, whose language reflected upon the author of an opinion written by one of the commissioners. Some days thereafter, when the matter of the petition had come under review, an order was issued from this court, which order was in fact a citation directed to the offending attorney and commanding his presence to show *460
cause why he should not be punished for contempt. A hearing was had and this court declared: "Upon the facts contained in the petition for rehearing, and quoted above, we adjudge the respondent Waterman guilty of contempt, committed in the face of the court." In re Foote,
Nor is the judge disqualified from sitting in the contempt proceedings. Petitioner's theory in this regard, if we understand it, is that the judge is disqualified from hearing the proceedings in contempt because the contempt itself consists in imputations upon his motives and attacks upon his integrity. Such is not and never has been the law. The position of a judge in such a case is undoubtedly a most delicate one, but his duty is none the less plain, and that duty commands that he shall proceed. However willing he may be to forego the private injury, the obligation is upon him by his *462
oath to maintain the respect due to the court over which he presides. As was said by the chief justice of this court in In rePhilbrook,
Were the rule otherwise so that it was required that another judge should be called in to sit in the proceeding, the recalcitrant and offending party would need only to insult each judicial officer in turn until the list was exhausted, and thus, by making a farce of legal procedure, go scathless and unpunished.
Coming now to the facts constituting the alleged contempt, it appears that John Bashore is a man about seventy years of age, who has been an invalid for more than twenty years, has been partially deaf for several years, and whose wife attended to and conducted all of his business transactions, while he remained upon the ranch where they lived, some miles from Visalia; that he prosecuted an action to recover certain properties which had been sold under execution. The cause was tried before a jury, resulting in a verdict and judgment adverse to him, and upon his appeal to this court a new trial was ordered for certain errors in the admission of evidence and in the giving of instructions.(Bashore v. Parker,
Indisputably, therefore, John Bashore, upon the face of this record was guilty of contempt, committed in the immediate presence of the court. Is his attorney, who presumptively prepared, and who certainly presented to the court this affidavit, any less guilty? As the case now stands, we think not. Under his oath to maintain the respect due to courts, every attorney stands responsible, not only for his own individual conduct in court, but for every paper which, knowingly, he presents on behalf of his client. As the matter is here before us, the petitioner knowingly presented this affidavit on behalf of his client, and for this he is equally culpable with his client. Defenses are open to him, and he may exonerate himself upon the hearing from intentional wrong-doing, if the facts warrant, but no doubt can be entertained of the jurisdiction of the court, under the circumstances shown, to proceed with that hearing.
The writ is discharged.
Angellotti, J., Shaw, J., Sloss, J., McFarland, J., Lorigan, J., and Beatty, C.J., concurred. *465