Grivel v. Superior Court

PRESTON, J.

In the above-entitled cause the order of the Superior Court of the State of California in and for the County of Imperial, given and made on the twenty-fourth day of January, 1929, purporting to annul the order of said court given and made on the twenty-eighth day of November, 1927, is itself hereby annulled. A consideration of the following will reveal the basis for this holding:

In the above-mentioned estate, Charles T. Wardlaw, administrator with the will annexed, pursuant to an order to show cause made therein, presented to the court his account and report as such officer and issues were made thereon by the written objections of Thirza Bass, guardian of the minor heirs of said decedent. In said cause, said account, together with the objections thereto, was heard by the Honorable

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M. W. Conkling, judge sitting in department 1 of said court. The account was approved by an order given and made by him on December 31, 1926..

It appears that said Judge Conkling, prior to his elevation to the bench, had been the attorney for one Barnes, a partner of decedent, in suit No. 4677 on the records of said court, wherein decedent was plaintiff and said Barnes was defendant; that upon the death of said Rene Grivel, the said Charles T. Wardlaw, as administrator of his estate, was substituted as plaintiff in said action, which was at all times herein pending and related to and involved property claimed as assets of said estate; and that the proceedings in said cause were introduced in evidence and considered by the court in the making of the said order of December 31, 1926.

Thereafter, but within six months, the said guardian filed in said court a document entitled “Motion and petition to vacate and set aside order and judgment settling and approving account of said administrator dated December 31, 1926,” to which document were attached copies of the pleadings and other proceedings in said cause No. 4677. This petition alleged the disqualification of said judge upon the grounds above stated and the consequent invalidity of the order so made by him. Lack of knowledge previous to June 11, 1927, of said disqualification was also set up. The introductory portion of said motion and petition contained the words: “ . . . petitioner and plaintiff herein . . . respectfully moves and petitions the above entitled court to vacate, set aside and annul the judgment and order ...” Upon the presentation and filing of these documents, the judge of said court within said period made the following order: “Good cause having been shown it is ordered that time be shortened and that this motion be set for hearing on Friday, July 15th, 1927. A. C. Finney, Judge of the Superior Court,” whereupon the moving party gave notice that on the day fixed the motion would be made upon this showing and upon the records and files of said cause, said notice containing also a restatement of the grounds of said motion.