People ex rel. Meminger v. Sexton

By the Court, Currey, J. An action was commenced in November, 1863, in the District Court in and for the County of Butte, by L. Meminger, plaintiff, against Joseph Gfluckauf, defendant, for the recovery of a debt of about two thousand dollars. The plaintiff has applied by petition to this Court for a writ of mandamus to be directed to the Judge of said District Court, commanding him to proceed to the trial of said action, in its order, in- the County of Butte. The petition shows that the action was commenced and the Court acquired jurisdiction of the parties in the mode provided by law, and that, after an issue of fact was joined in the suit, at a term of the District Court held in said county, in December, 1863, the defendant applied to the Court, on an affidavit, to change the place of the trial of [81]the action from the County of Butte to some adjoining district, on the ground that he could not obtain a fair and impartial trial in said county, because the plaintiff and others, conspiring together “to prejudice the public mind in Butte County against him” respecting the matters in issue joined between the parties, had been busily circulating a report in such county, which he deemed injurious and prejudicial to his interests and safety as a litigant in said District Court; and because, second, to the best of his opinion and belief, he could not have a fair and impartial trial of said cause before the Judge of said District Court, either on questions of law or fact, on account of the bias and prejudice of the Judge against the defendant. The Judge held the affidavit on which the defendant based his motion for the change of the place of trial to be insufficient, and, after stating that he was not conscious of any bias or prejudice, or of any reason or fact on which the defendant could predicate such an opinion or belief, decided that under the circumstances of the imputation thus made, though general in terms, he was unwilling to try the cause, and, therefore, granted the motion and ordered the place of trial changed from the District Court for Butte County to the District Court for the County of Yuba.

The order changing the place of trial having been made, the plaintiff, by his attorney, requested the Court to set the cause for trial; whereupon the Judge thereof refused to comply with the request, and declared that he would not try the cause then nor at any other time. To the decision granting the order changing the place of trial, and to the refusal of the Judge to try the cause, the plaintiff duly excepted.

The facts here stated are set forth in the petition and papers thereunto annexed, as a part thereof.