McGarvey v. Southern Pacific Milling Co.

STEPHENS, P. J.

Judgment was had by plaintiff in the superior court and defendants sought and were granted a new trial. The plaintiff appeals. The motion was regularly called and continued on the twenty-first day of August, 1933, to the twenty-eighth day of August, 1933. On said last date the court was about to set the argument for the eighth day of September, 1933, whereupon Mr. Shaeffer attorney for plaintiff, stated that the date was not agreeable to him and the court fixed the date as the sixth day of September, 1933,—this being a date which Mr. Shaeffer stated would be convenient for him. On September 2, 1933, plaintiff filed an affidavit of bias and prejudice against Honorable T. A. Norton, who had presided at the trial of the cases and motion was made to call in another judge to hear the new trial motion. Judge Norton filed a counteraffidavit on the same day. Attorneys in the case stipulated that the motion as to the propriety of Judge Norton’s hearing the motion for new trial should be heard on the fifth day of September, 1933, and that Judge Henderson of Ventura County should hear the motion.

[606]

On the fifth day of September, 1933, the motion to call in another judge to hear the motion of alleged disqualification of Judge Norton was regularly continued through stipulation of attorneys to the seventh day of September, 1933. On September 6, 1933, Judge Norton did not appear and no judge appeared and the court clerk adjourned court until the next day in accordance with section 139 of the Code of Civil Procedure. On September 7, 1933, there appeared upon the court’s calendar (1) plaintiff’s motion to call in another judge to hear the motion for new trial and (2) the argument on the motion for a new trial. Judge Henderson presided and called the motion to call in another judge, etc. All concerned were present except Fred A. Shaeffer, attorney for plaintiff. W. J. Minville, an attorney practicing in this state, appearing for a limited purpose, objected to the court’s proceeding on the ground that Mr. Shaeffer was not present. Considerable argument ensued but finally later in the day Mr. Shaeffer appeared and objected to any proceedings on the ground that he had not had legal notice of the time the motion had been set for.

We think the matter of time was entirely regular up to this point in the case. Mr. Shaeffer then stated in open court that he wished time to subpoena a witness and he was thereupon informed that the witness was in court. Over the objection, the court heard the motion and determined that Judge Norton was not biased or prejudiced.