Norwood v. Kenfield

By the Court, Sawyer, J.: This case has been here before. (30 Cal. 394.) When it went back for a new trial, the County Judge, on the 7th of November, 1866, made an order for a special term, to be held on the 20th of the same month, for the purpose of hearing and determining the contest, and directed the Clerk to issue a citation to Kenfield, the respondent below. On the 8th of November, after the citation had been served, on affidavit, showing that it would be inconvenient to try the case on the 20th, and on ex parte application of plaintiff, the County Judge, at chambers, issued an order to Kenfield to show cause before him at chambers on the 10th, why the trial of the foregoing case should not he set for Monday, the 26th day of November, 1866. At the time and place appointed in the order the respondent appeared, and for cause alleged that the County Judge had no' authority at chambers to make the order; that it could only be made in open Court, and that a motion to continue the trial of a cause could not he heard before the commencement of the ;erm. The Judge overruled the objection, and “ ordered :he case adjourned till Monday, December 3d, 1866; to ¡vhich mling and order of the Judge the defendant then and ihere excepted. On the 20th of November, 1866, the County Dourt was not opened, or this case called on that day. Nor vere any proceedings had in the case after November 10th intil December 3d, 1866.” It is claimed that the Judge, at ;hambers, before the commencement of the term, had no [332]jurisdiction to adjourn the trial to a subsequent time; that the order was one which the Court only, and not the Judge, was authorized tó make. The authority of the Judge, as such, must be found, if it exists, in section thirty-eight of the Judiciary Act of 1863, (Laws 1863, p. 388,) or in the Act concerning elections, under which the contest is made. We find nothing in the latter Act conferring the authority. The Court “ may also continue the said trial before its commencement.” (Laws 1850, Sec. 63; Wood’s Digest, 382.) That is to say, before the commencement of the trial. But no such authority is given to the Judge, as Judge, when not holding Court. Section thirty-eight of the former Act is very similar to section twenty-five, relating to District Courts. That section confers no such authority upon the Judge at chambers. (Bond v. Pacheco, 30 Cal. 532; Larco v. Casaneuava, 30 Cal. 560.)

But if the objection to the postponement of the trial was not well founded, or if waived by subsequent appearance, as claimed by the contestant, there is still an insuperable obstacle to sustaining the judgment. There was no Court at the time of the trial. There was no term in existence at which a trial could be had, and the whole proceeding was a nullity. The proceeding is special, and held in pursuance of the provisions of the Act to regulate, elections. The Act, as amended in 1855, requires the Judge to “ order a special term of said Court, to be held at the Court House of the proper county, on some day to be named by him, not less than two nor more than twenty days from the date of such notice, to hear and determine such contested election.’' (Laws 1855, p. 161, See. 8; Wood’s Digest, 381.) “ Said Court shall meet at the time and place designated to determine such contested election,” etc. (Laws 1850, p. 107, Sec. 62; Wood’s Digest, 382.) As we have seen, an order was regularly made on the 7th of ¡November, appointing a specia term to be held on the 20th of the same month, and a cita tion duly issued requiring defendant to appear on that day The citation was also duly served. If it was competent foi