Eagle Maintenance & Supply Co. v. Superior Court

FRAMPTON, J. pro tem.

*

Petitioner seeks a writ of pro hibition to restrain a judge of the respondent court from

[693]

proceeding to try a cause of action pending before him in which petitioner herein is the plaintiff.

Although the petition sets forth matters which could be considered as the basis of a claim of actual bias under the provisions of Code of Civil Procedure, section 170, these matters are denied in the return. In addition the petition describes the motion and affidavit as having been filed in the trial court pursuant to Code of Civil Procedure, section 170.6 and the return treats it as such. At the time of oral argument in this court, petitioner and respondent agreed that the cause should be heard and determined on the basis that the challenge was peremptory (Code Civ. Proc., § 170.6), rather than for cause (Code Civ. Proc., § 170).

It appears that the action was first set for trial April 14, 1961, in the department to which the judge against whom the peremptory challenge was later filed, was regularly assigned. The cause went to trial as a default on said date and an order for judgment in favor of plaintiff was entered in the minutes. No judgment was thereafter entered.

On May 2, 1961, before the same judge, defendant moved the court under Code of Civil Procedure, section 473, to set aside the order for judgment and default and such motion was granted. The following minute order was made. “The cause is reset for trial in this Dept at 9 :45 AM, June 1, 1961, and notice is waived.” The record further discloses that petitioner’s counsel was present when this order was made.

The return to the petition shows that some time prior to June 1, 1961 (exact date not disclosed), pursuant to oral request of counsel the trial date was postponed to September 6, 1961, in the same department of the court. That on or about September 1, 1961, petitioner caused to be served and filed his motion to disqualify and affidavit pursuant to the provisions of Code of Civil Procedure, section 170.6.

On

September 6, 1961, the motion to disqualify was denied and the judge against whom the motion and affidavit were directed continued the trial to October 4, 1961, and will proceed in the trial at that time unless restrained.