Moore v. Superior Court

CHIPMAN, P. J.

The petitionwith its exhibits is a voluminous document. The essential facts therein appearing are as follows: That petitioners are electors of Madera County; on July 3, 1912, they duly filed their statement contesting the vote in precinct 2 of said county at a certain election on June 8, 1912, under the act of the legislature, to provide for the regulation of the traffic in alcoholic liquors, approved April 4, 1911; pursuant to the provisions of section 1118a of the Code of Civil Procedure, to wit, on July 8, 1912, the said court duly' made its order for a special session of said court to be held on July 23, 1912, to hear said contest and directed citations to issue to defendants to, appear on said day and answer said contest; on said day counsel for all the parties appeared, Hon. R. H. Latimer, under assignment by the governor, sitting as judge of said court; one of the contestants objected to the case being heard by said judge because he came from a so-called “wet county, ’’ who, without

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affidavits of prejudice being filed or other showing made, retired from the bench, disclaiming that he knew anything about the case or had any prejudice in favor of or against any of the parties; respondent, Judge Conley, the presiding judge of that court, resumed the bench; counsel for petitioners expressed a willingness to have Judge Conley try the ease, but he deemed himself disqualified and stated that the only course open was “to order a continuance until such time as another judge may be procured to try the case”; counsel for contestees objected to a continuance for the reason that it “would be a waiver of jurisdiction.” “The Court: Will you stipulate (addressing all the counsel) that any judge in Los Angeles County can try the case? I don’t know who the judge will be. Mr. Drew (counsel for petitioners) : I am willing to put it on that broad ground. Mr. Rhodes (counsel for respondents) : Yes, and reserving all our rights in the matter. The Court: Now when do you want to try this case, how would the 11th day of September suit? Mr. Drew: Yes. Mr. Rhodes: All right. The Court: Then, Mr. Clerk, the order will be that this extra session of court will be continued until September the 11th, 1912, at 10 o’clock a. m.”; thereafter, on July 27, 1912, Judge Conley made an order, contestants not being present, designating Honorable Charles Monroe, judge of the superior court of Los Angeles County, to preside at said trial, “to be held on September 11, 1912, at the hour of 10 o’clock a. m.” “Mr. Rhodes: Defendants and contestees accept (except) to the ruling of the court on the ground that the court is deprived of its jurisdiction.” Immediately thereafter Judge Conley went to the county of Los Angeles and did not return to Madera County until August 10, 1912, and on that day counsel for petitioners appeared in said court, Judge Conley presiding, and moved the court to vacate the minute orders of July 23rd and July 27th, aforesaid, “and reset said contest for hearing within twenty days of July 23, 1912, as provided in section 1118a et seq. of the Code of Civil Procedure.” (This motion was made eighteen. days after the order of July 23rd and two days within the statutory period of twenty days.) As to what occurred at the hearing of this motion counsel for petitioners and respondent, the judge, do not agree. We quote from the return: “In this behalf respondent avers that upon the mak