Gunn v. Superior Court

[204]

ADAMS, P. J.

On or about May 18,1946, this court issued a writ of mandate directing the Superior Court of Lake County to set aside an order made by it dimissing an appeal by petitioner James A. Gunn, Jr., from a judgment of a justice’s court, and to proceed with the trial and determination of the action on appeal.

On August 2, 1946, said James A. Gunn, Jr., filed in this court what he has designated as a notice of motion in which he asks this court to take such action and make such orders, in accordance with section 1097 of the Code of Civil Procedure, as may seem necessary and proper, against the Superior Court of Lake County, and Judge Ben R. Ragain, presiding . as judge pro tern, in said court. Said notice of motion recites that a “purported” hearing of his appeal was had in said superior court before Judge Ragain, but that it “was not a hearing at all, but a mere pretended obedience to the peremptory Writ of Mandate” issued by this court, and was “essentially a disobedience of said Writ.” The grounds of the motion as stated are that appellant was not allowed to read to the trial court an excerpt from a particular decision, or to make his argument, but was told that he did not understand the matter; that he was “shut off” and “summarily dismissed” and ruled against. Said notice of motion was accompanied by an affidavit of the movant in which he alleges in greater detail that he was not permitted to read to the court from the decision in the case upon which he relied. Also in said affidavit, in effect, he argues the merits of his appeal from the judgment of the justice’s court, and asks this court to make an order setting aside Judge Ragain’s decision affirming said judgment, and to order a new hearing of the appeal in ‘ ‘ complete obedience” to its prior writ, and to direct the superior court as to what the law is in the case and what the decision should be.

In response to the aforesaid motion Judge Ragain filed in this court his affidavit in which he alleges that the case appealed from the justice’s court, entitled

James A. Gunn, Jr.,

v.

Rosetta M. Gunn,

came on regularly for hearing before him; that a question of law only was presented on said appeal, the court below having sustained a demurrer to plaintiff’s complaint without leave to amend; that plaintiff was allowed ample time—approximately an hour—for presentation of his argument, after which the court concluded that the order of the lower court sustaining the demurrer should be affirmed,