Elliott v. Superior Court

SCHOTTKY, J.

Petitioners seek a writ of prohibition to restrain The Honorable Raymond J. Sherwin as judge of the superior court of Solano County from proceeding further in the case entitled W.

A. Elliott et al.

v.

Amerada Petroleum Corporation et al.,

now pending before the court.

In September, 1956, petitioners filed an action in the Superior Court of Solano County to recover damages from the defendants in the action for alleged wrongs resulting from the operation of the Rio Vista Gas Field in Solano County. Demurrers to the original complaint and to two amended complaints were sustained with leave to amend. A fourth amended complaint was then filed in which John Aye, individually and as a citizen and a taxpayer, brought an action on behalf of the Sacramento and San Joaquin Drainage District and on behalf of the State Lands Commission, a public

[896]

agency of the state of California, both of which own property in the gas field.

Thereafter, oh October 16, 1959, the petitioners herein filed a statement in which they sought to disqualify The Honorable Raymond J. Sherwin from proceeding in the matter. The affidavit in support of the statement stated that Judge Sherwin was disqualified to act in the proceedings because of section 170, subdivision 6, of the Code of Civil Procedure. It was contended that the judge was disqualified because the action involved a claim on behalf of the Sacramento and San Joaquin Drainage District and the State Lands Commission. After this document was filed the defendants in the action made a motion to strike the statement of objection and the affidavit in support of it. The matter was heard by Judge Sherwin, and after argument he made an order granting the motion to strike. This petition was then presented to this court and an alternative writ of prohibition was issued.

Prohibition is the proper remedy to test whether or not a judge is disqualified to act where the facts are not in conflict. An order striking a petition for disqualification from the files is not an appealable order and the remedy by appeal is inadequate.