Haldane v. Superior Court

BURKE, P. J.

Plaintiff was a defendant in a divorce proceeding. Judgment was entered against him from which he appealed. The appeal was unsuccessful and a hearing was denied by the Supreme Court.

(Haldane

v.

Haldane,

210 Cal.App.2d 587 [26 Cal.Rptr. 670].) Thereupon plaintiff brought an action in equity to set aside the judgment (the interlocutory decree of divorce) entered in the former action, alleging undisclosed disqualification of the trial judge on the grounds of prejudice. In such action he joined as defendants the Superior Court of Los Angeles County and his# wife, who was plaintiff in the preceding action. General demurrers were filed by both defendants which were sustained without leave

[485]

to amend and thereupon a judgment of dismissal was entered as against defendant superior court only. No judgment of dismissal was prepared by counsel for the defendant wife, nor entered. From such judgment plaintiff appeals, “stipulating” that a judgment of dismissal could be deemed entered in such action

nunc pro tunc

as against his defendant wife; from such

nunc pro tunc

“judgment” he likewise purports to appeal.

Defendant superior court contends correctly it is not a proper party to the action. As in

Haase

v.

Gibson,

179 Cal.App.2d 256, 258 [3 Cal.Rptr. 806], “The sole purpose of this action, as indicated by the prayer of the complaint, is to set aside as void a judgment of the superior court. An equitable action to set aside an order or judgment on the ground that it is void ordinarily is one by ‘the losing party against the successful party. ’ (3 Witkin, California Procedure, 2120, Judgment, § 67.) ”

The complaint alleged in part that the judge had received unsworn representations concerning the defendant in that action in privacy and secrecy and had prejudged the case as a result thereof. Assuming, without deciding, such allegations to have been both sufficient and true, they would not support a cause of action against the superior court itself. The proper action is against the plaintiff in the prior action. Where the disqualification of a judge is known before trial, sections 170 and 170.6, Code of Civil Procedure, present the remedy. Where the facts become known after trial, a timely motion in the action itself, such as a motion for new trial, or motion to vacate the judgment, or, if such motions are unavailing, a suit in equity against plaintiff, are the proper means of seeking relief. (Civ. Code, § 3523;