Johnston v. Dakan

[524]

COOPER, P. J.

This case is here on appeal from the

judgment and the order denying defendant’s motion for a new trial. The complaint was filed in 1904. When the case came on for trial, October 19, 1905, the defendant claimed that the judge was disqualified under section 170 of the Code of Civil Procedure, which provides that no judge shall sit or act in any action or proceeding “when it appears from the affidavit or affidavits on file that either party cannot have a fair and impartial trial before any judge of a court of record about to try a case, by reason of the prejudice or bias of such judge. ’ ’ It has been held that under the above-quoted section the trial judge may pass upon the question of his own disqualification.

(People

v. Compton, 123 Cal. 405, [56 Pac. 44].) We have no hesitation in saying that in all cases where the facts established by the affidavits. are such as to create in the mind of an honest litigant a sincere belief that he cannot have a fair and impartial trial before the judge in whose court the action is pending, and where the facts are such as to justify a reasonable man in such belief, the ends of justice would be subserved by calling in another judge. The judge should not only be honest and impartial, but his acts and conduct should be such that there can be no foundation for questioning his motives. It' is apparent that the section may be greatly abused by dishonest litigants or unscrupulous attorneys. It is therefore the duty of the trial judge to carefully scrutinize each case, to the end that the law may not be abused for sinister purposes.. If the trial judge is convinced from the facts of the integrity of his own conduct and motives, of the fact that his sole desire is to see the law applied with equal and exact justice to all, and further that the object of the party who alleges the disqualification is to thwart justice, or to get the case before another judge of his own choosing, he should have the courage to act accordingly. On the other hand, where the facts are honestly stated, and when so stated they point to certain conditions that would ordinarily influence men in the business transactions of life, and when applied to the particular case would lead a reasonable person to hesitate as to whether or not the judge could, under the circumstances, considering the weakness of human nature, entirely ignore such facts, there should be no hesitation in calling in another judge, so that the fountain-head of justice should be above suspicion.