Webb v. Superior Court

ELLISON, J.

pro

tem.

This is a proceeding by

certiorari

to review an order of the superior court of Del Norte County convicting the petitioner of a contempt of court. In a suit therein pending, entitled Santes

v.

Moseley, the petitioner, as attorney for the defendants, filed an affidavit alleging bias and prejudice on the part of the judge of the court against his clients and objected to his hearing the case. After citation and order to show cause said court adjudged the petitioner guilty of contempt of court for incorporating in and making part of said affidavit the following paragraph: “That affiant is informed and believes and upon such information and belief states, that said John L. Childs has been and now is unduly active in prospective litigation before this court, and in substantiation thereof further states that said John L. Childs did on or about the first day of June, 1915, advise and direct said Geo. W. Howe, attorney for plaintiff herein, in substance, to prepare and serve the necessary legal notice upon defendant herein noticing a certain motion to rescind and set aside a certain order extending time to answer, etc., the amended complaint on file herein, and such advice and direction on the part of the court' manifestly shows bias and prejudice against these defendants and in favor of the plaintiff in this action. ’ ’

[393]

The court’s finding in the order of commitment relative to the above paragraph is: “ The said language in particular in this paragraph above set forth was then, at said date of filing same in this court, and is now, meant to reflect upon the integrity and good faith of the said court and said Judge John L. Childs thereof and was then, at said date of filing same in this court, and is now, intended to bring into disrepute the said Judge John L. Childs and the said court over which he presides.”

Petitioner’s position, as gathered from his brief, is: That, under section 170 of the Code of Civil Procedure, as amended in 1897 [Stats. 1897, p. 287], he has a legal right by affidavit to allege any facts showing the bias or prejudice of the judge against his client and thereby disqualify him from hearing the case, and if such facts are material to the issues and state just grounds for disqualification the party cannot be punished for-contempt for inserting them in his affidavit "even though they may reflect upon the integrity and good faith of the judge.”