Golish v. Feinstein

HOUSER, J.

This is a motion to dismiss an appeal from an order by which following a default judgment in the action, plaintiff’s objections to the hearing by a designated judge of the Superior Court (because of his alleged bias and prejudice) of any issue of fact or law arising therein, were denied.

More particularly, the facts appear to be that, after the default judgment had been entered, defendant served and filed his several notices of intention to vacate both the default and the ensuing judgment, to recall the execution issued on said judgment, to stay its execution, and to quash its execution; also, to strike the complaint and various specified paragraphs thereof. Thereafter, plaintiff filed with the clerk of the court objections to the hearing of any further issue of either fact or law by the judge presiding in the department of the Superior Court where the several matters were set for hearing, on the ground, primarily, that by reason of the bias or prejudice of said judge a fair and impartial hearing or trial could not be had before him. By order of the trial court, such objections were, and each of them was, overruled. Whereupon plaintiff gave notice

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of appeal from such order. The reason here urged for the dismissal of the appeal is that no appeal lies from an order of the character of that here in question.

In moving to dismiss the appeal reliance is placed in the general rule that, although under the provisions of subdivision 2 of section 963 of the Code of Civil Procedure, an appeal may be taken “from any special order made after final judgment,” before an order properly may be said to be “special,” it must appear that in some manner it affects the judgment itself, or at least bears some relation to it, either as to its enforcement or as to the prevention or the staying of its execution. (2 Cal. Jur. 155;

Griess

v.

State Inv. & Ins. Co.,

93 Cal. 411 [28 Pac. 1041] ;

Kaltschmidt

v.

Weber,