People ex rel. Carrillo v. De la Guerra
Before: Sawyer
Synopsis
Degrees of Consanguinity—Computation of.—In this State, in computing the degrees of consanguinity, the common law is the rule of decision in all cases except in relation to descent and distribution, in which the rule of computation which prevails under the civil law has been adopted.
Motion to Change Venue—What Denial of.—When two motions are pending in an action at the same time, one to change the venue, and one to dismiss, an entry of a judgment of dismissal, without any formal order denying the motion to change the venue, is a virtual denial of the same.
Disqualification of Judge fro3C Trying a Cause.—If a. Judge is related to either of the parties to an action by consanguinity or affinity within the third degree, he is disqualified from acting in the case in any matter except in the arrangement of the calendar or regulation of the order of business. Even if no objection is made, he has no right to act, and ought of his own motion to decline to sit as Judge. In such case, an order of the Judge, dismissing the action, is void, on the ground of his incapacity to act.
Papers—How made Part of Pleadings.—Records and papers cannot be made a part of a pleading by merely referring to them, and praying that they may be taken as a part of such pleading, without annexing the originals or copies as exhibits, or incorporating them with the answer, so as to form a part of the record in the cause.
Former Suit in Bar—Must be Proven.—If an answer sets up a former suit pending between the same parties in abatement of the action, and has annexed to it a copy of the record of the former suit, the annexation of this copy docs not do away the necessity of a trial and the introduction of the record in evidence. The question cannot be determined on the pleadings, but there must still be proof of the former suit.
By the Court, Sawyer, J. The relator and respondent were candidates for the office of Sheriff’ in the County of Santa Barbara, at the September election. The respondent was declared elected, and received the certificate. On the 22d of November, 1863, the relator [74]filed Ms petition in the County Court, in pursuance of the statute, for the purpose of contesting the election. The hearing of the case was set for the 12th of- December, and a special term of the Court appointed for that purpose. On the 12th of December an affidavit was filed on the part of the relator, showing that the relator and respondent are first cousins of the wife of the Judge before whom the proceeding was pending; and on this affidavit the relator moved the Court for a change of the place of trial to the Comity of Los Angeles, or some other county, on the ground of disqualification of the Judge to hear the case by reason of this relationsMp.
On the same day the respondent filed his answer, in which, among other tMngs, he alleged that a similar proceeding had before been commenced by the same party in the same Court, and for the same object; that upon the motion of respondent the said proceeding had been dismissed; that the relator had appealed from the judgment and order of dismissal; that said appeal was still pending and undetermined, and that there was, therefore, another suit pending between the same parties for the same cause of action. Upon which answer he prays that the petition of the relator be dismissed. In the answer, the respondent refers to the record of the former proceeding, and prays that he may have leave to m%ke the original or certified copies of the same a part of his answer; but he does not annex copies, or in any other mode than as above stated make them parts of the answer. The answer also contained defences on' the merits of the case. There does not appear to have been any trial of the issues thus formed. On the 12th of December, the day previously appointed for the hearing, when the relator’s counsel moved for a change of the place of trial, as above' stated, the respondent’s counsel made a counter motion to dismiss the case on the pleadings, upon the ground that there was another action pending between the same parties for the., same cause. Both motions were argued and subnyjtted at: the same time, and taken under .advisement. On the' 19th of Deceinber the Judge filed his decision in [75]
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