Talbot v. Pirkey

BEATTY, C. J.

This is an original proceeding in prohibition. The petitioner is defendant in a civil action now pending in the superior court of Glenn County, of which the respondent is judge. He moved the court, upon due notice, supported by affidavits, to secure the services of a judge of another county to preside at the trial of all the issues of law and fact in said cause, upon the ground that he could not have a fair and impartial trial before respondent by reason of his prejudice and bias. The affidavits filed in support of the motion, copies of which are annexed to the petition, are amply sufficient, if uncontradicted, to establish the charge of bias and to disqualify the respondent; but it is not alleged that no counter-affidavits were filed, and we cannot assume in favor of the petitioner that his motion was denied upon the case made by his affidavits. The motion was based upon the fourth subdivision of section 170 of the Code of Civil Procedure, as amended in 1897; and assuming that there were counter-affidavits filed in opposition to the motion, it is clear that under the provisions of that amendment the respondent had jurisdiction to decide the question of his own bias, and to try the cause, if he found the charge unsustained. Having jurisdiction to try the cause, he cannot be prohibited from doing so, and his error, if error there was, in denying the motion can only be reviewed on appeal.

Writ denied.

[328]

Van Dyke, J., Lorigan, J., McFarland, J., and Henshaw, J., concurred.

SHAW, J., concurring.

I concur in the opinion of the chief justice; but I do not want to be considered as conceding that if it appeared that no counter-affidavits had been filed the case would be reviewable on prohibition.

Angellotti, J,, concurred with Shaw, J.