24 Cal. 73 | Cal. | 1864
The relator and respondent were candidates for the office of Sheriff’ in the County of Santa Barbara, at the September election. The respondent was declared elected, and received the certificate. On the 22d of November, 1863, the relator
On the same day the respondent filed his answer, in which, among other tMngs, he alleged that a similar proceeding had before been commenced by the same party in the same Court, and for the same object; that upon the motion of respondent the said proceeding had been dismissed; that the relator had appealed from the judgment and order of dismissal; that said appeal was still pending and undetermined, and that there was, therefore, another suit pending between the same parties for the same cause of action. Upon which answer he prays that the petition of the relator be dismissed. In the answer, the respondent refers to the record of the former proceeding, and prays that he may have leave to m%ke the original or certified copies of the same a part of his answer; but he does not annex copies, or in any other mode than as above stated make them parts of the answer. The answer also contained defences on' the merits of the case. There does not appear to have been any trial of the issues thus formed. On the 12th of December, the day previously appointed for the hearing, when the relator’s counsel moved for a change of the place of trial, as above' stated, the respondent’s counsel made a counter motion to dismiss the case on the pleadings, upon the ground that there was another action pending between the same parties for the., same cause. Both motions were argued and subnyjtted at: the same time, and taken under .advisement. On the' 19th of Deceinber the Judge filed his decision in
The Judge then states the former proceeding, and that the record is made a part of the answer—that from this it appears that an appeal in that proceeding is still pending—and adds : “ This being the present position of the case, the rule must prevail that where two suits are commenced for the same cause of action, the former may be pleaded in abatement of the latter. The action is dismissed.”
The foregoing quotation and order contain all that was said, and this is the only order entered in the case after the argument relating to the motion for change of the place of trial.
The notice of appeal filed on the same day states “ that the relator appeals * * * from the judgment and order refusing to change the place of trial therein made and entered in said Court * * * in favor of said respondent and against said relator, and from the whole thereof.”
No order in form was made refusing to change the place of trial—the Judge did not formally pass upon the motion. In deciding the case and ordering it to be dismissed, the Judge, as will appear from the foregoing quotations from his decision, assumes by implication, if he does not directly admit, his relationship to the parties, and adopts the theory of the defendant, to the effect that there is a distinction between trying the case and examining the pleadings .to ...see if. there is anything to be tried which would rend^rr^np^gsaryjy^ send the case to another county for trial aiiiUthat, although he
For the purposes of this decision we must, therefore, assume the relationship to exist. The relator claims that the degrees of relationship must be computed by the canon law, which is followed by the common law; while the respondent insists that the computation shall be by the rules of the civil law. If the former rule is adopted, the parties are within—if the latter, without—the prohibited degrees. At an early day the common law was adopted as the rule of decision in this State; and the rule of the common law prevails except as to those particulars in which modifications have been made by statute. In the statute relating to descent and distribution, the rule of computation which prevails under the civil law has been adopted ; but the statute does not purport to extend the rule beyond the purposes contemplated by that Act. The late Supreme Court so held in several cases, and we are satisfied
In the present case, the Judge thought the section of the statute under which he was proceeding made a distinction between trying the case and examining the pleadings and determining from them the question whether the action ought to be dismissed or not, and upon this ground thought himself qualified to make the order of dismissal. But in this he was in error. Plis act was a judicial' act—one that required consideration and the exercise of his judgment. It was, therefore, an act that he was not competent to perform.
The dismissal of the proceeding was void on the ground of the incompetency of the Judge to act, and the refusal to change the place of trial erroneous. But, conceding the action of the Judge in dismissing the case to be void on the ground stated, it is still insisted that if he determined the case correctly upon
But, if considered as a part of the answer, still, the question cannot be determined upon the pleadings. The pleadings raised an issue. The new matter in the answer, under the Practice Act, is deemed to be controverted, and, in this case, the new matter set up in abatement raised an issue, which required proof, like any other issue. The issue must be tried, and the facts found, before the answer can be assumed to be true. In the trial of one case the Court can no more take judicial notice of the record in another case in the same Court, without its formal introduction in evidence, than if it were a record in another Court; much less can this Court take notice of the existence of a record not introduced in evidence in the Court below. There was no trial in this case, but the question was determined upon an inspection of the pleadings—and the proceedings in the first case are improperly in the record.
The judgment is reversed and the cause remanded.