42 P. 239 | Cal. | 1895
Messrs. J. K. and T. C. Law, brothers, were attorneys for plaintiff in this action. The former was elected judge of the superior court of Merced county, where the action was and is yet pending, and entered upon the discharge of the duties of that office; his brother remained an attorney of record for the plaintiff. This being the situation of the case, defendants notified plaintiff that they would on December 7, 1893, move said court to change the place of trial of said action to another superior court on the double ground of the relationship of Hon. J. K. Law, judge of the Merced court, to one of the plaintiff’s attorneys, and that he had himself been an attorney for the plaintiff in the action. The fact of such notice being brought to the attention of Judge Law on December 4th, he announced to the parties in open court that
The statutes pertaining to the matter may be thus abstracted : No judge shall act as such in any action when he is related to an attorney or counsel of either party by consanguinity or affinity within the third degree, or when he has been attorney or counsel for either party in the action; but his disqualification does not extend to the power of transferring the action to another court: Code Civ. Proc., sec. 170, as amended in 1893. The court may, on motion, change the place of trial when from any cause the judge is disqualified from acting: Id., sec. 397. If an action is pending in a court, and the judge is disqualified from acting as such, it must be transferred for trial to a court the parties may agree upon; or, if they do not agree, then to the nearest court where the like objection does not exist: Id., sec. 398.
The case differs in no material particular from Upton v. Upton, 94 Cal. 26, 29 Pac. 411, where similar proceedings by the same judges, resulting in a denial of an application for change of venue, were sustained by this court; and the order appealed from here should be affirmed if that case is to be followed. But the court subsequently said of Upton v. Upton: “We felt constrained to follow the decision in Paige v. Car
We concur: Searls, C.; Haynes, C.
For the reasons given in the foregoing opinion the order appealed from is reversed.