| Cal. | Jul 1, 1863
Lead Opinion
On the twentieth day of November, 1862, Flagley commenced an action against A. Gufiy and others, before G. H. Riddell, a Justice of the Peace in the County of Solano, and on application of the defendants the action was removed for trial before the defendant, Hubbard, a Justice of the Peace in the same county. At the time set for trial before the defendant, the defendants in the action again moved for a change of the place of trial, on the ground that they could not have a fair trial before the defendant. The Justice sustained the motion, and entered an order changing the trial to another Justice in the same county. The plaintiff, Flagley, then applied to the County Judge of Solano County for a writ of mandamus, commanding the defendant to vacate the order of removal entered by him, and to proceed to try the action. The application for the writ was afterwards heard by the County Court of Solano County, and the same was refused, and the petition for the writ dismissed. The relator, Flagley, appeals from this order to this Court, and contends that the County Court erred in refusing the writ of mandate as prayed for.
We think there is no error, and that the County Court properly refused to grant the writ. In this case the defendant, as a judicial officer, determined a question properly brought before him, and his action therein cannot be reviewed by means of a writ nf mandate. This Court, in the case of McDougal v. Bell (4 Cal. 177" court="Cal." date_filed="1854-04-15" href="https://app.midpage.ai/document/reed-v-grant-5432697?utm_source=webapp" opinion_id="5432697">4 Cal. 177), recognized the rule that “ Courts of law have uniformly refused to allow the rule for a mandamus to issue, when it was to compel a person,
In the present case, it was the duty of the defendant to determine the question whether the defendants, in the case before him,. had a right to a removal of the cause, and having decided it, his decision is subject to review, upon appeal from the final judgment, like any other order or judgment in the case, and in this form the relator has a full and ample remedy. Had the Justice refused to decide the matter, or make any order upon the motion for removal, and refused to proceed with the case, then he might have been compelled by mandamus to act and determine the questions submitted to him.
The judgment is affirmed.
Rehearing
In the petition for a rehearing in this case, it is urged that the Justice had no discretion under the statute, and that it was his duty to proceed to try the case ; but no reason is given for this position. Section 582 of the Practice Act provides that u if either party make affidavit that he has reason to believe, and does believe, that he cannot have a fair and impartial trial before such Justice, by reason of the interest, prejudice, or bias of the Justice, the action shall be transferred to some other Justice of the same or neighboring township.” That affidavit was made in this case before the defendant. It would seem that upon the filing of the affidavit, as required by the statute, it would be the duty of the Justice not to try the case, but to transfer it. The fact that it had already been changed once can make no difference, as the object of the law is to provide the parties with a disinterested, unprejudiced, and unbiased tribunal to adjudicate their cause. The party was not barred from applying for the second transfer because the first Justice had ordered the case for trial before the defendant. He might not then have known of the interest, prejudice, or bias of the defendant, and therefore may not have raised any objection, or if he had raised it, might not have been able to substantiate
We are referred to the case of Larue v. Gaskins (5 Cal. 507" court="Cal." date_filed="1855-07-01" href="https://app.midpage.ai/document/larue-v-gaskins-5433016?utm_source=webapp" opinion_id="5433016">5 Cal. 507), in support of the proposition that a mandamus is the proper remedy. In that case the Justice refused to transfer the cause or proceed with the trial, and it was because of this refusal to act that the mandamus became the proper remedy. But where the officer does act, and either transfers the case or proceeds with the trial, the correctness of such action cannot be reviewed by this writ. The same principle is recognized in the case of Purcell v. McKune (14 Cal. 230" court="Cal." date_filed="1859-07-01" href="https://app.midpage.ai/document/purcell-v-mckune-5434233?utm_source=webapp" opinion_id="5434233">14 Cal. 230).
The petition for a rehearing is denied.