Upton v. Upton

Paterson, J. This is an appeal from an order denying plaintiff’s motion to change the place of trial.

The motion was made on the ground that Hon. J. K. Law, judge of the superior court of Merced County, was disqualified by reason of having acted as attorney for defendant prior to the time of his election. The notice of motion fixed Saturday, the seventh day of March, 1891, at ten, a. m., as the time for hearing the motion. On that day and at that hour, Hon. Joseph H. Budd, judge of the superior court of San Joaquin County, at the request of Judge Law, held a session of the superior court of Merced County, and called the motion referred to for hearing and determination; whereupon the plaintiff insisted that Judge Law should hear the motion, because it was his duty to hear it, and he had no authority to call in another judge to pass upon the motion, and thereby deprive the plaintiff of his right to have the case transferred to an adjoining county. The request was denied, and an order was made by Judge Budd denying the motion to change the place of trial, to which ruling the plaintiff excepted. In passing upon the motion, the judge stated that he was ready and willing to try the case at that or any other time for which it might be set for trial.

Appellant relies upon sections 170 and 398 of the Code of Civil Procedure. “No justice, judge, or justice of the peace shall sit or act as such in any action or proceeding .... when he has been attorney or counsel for either party in the action or proceeding. But the provisions of this section shall not apply to the arrangement of the calendar, or the regulation of the order of [28]business, nor to the power of transferring the action or proceeding to some other court.” (Code Civ. Proc., sec. 170.) “If an action or proceeding is commenced or pending in a court, and the judge or justice thereof is disqualified from acting as such, or if, from any cause, the court orders the place of trial to be changed, it must be transferred for trial to a court the parties may agree upon, by stipulation in writing, or made in open court and entered in the minutes; or, if they do not so agree, then to the nearest court where the like objection or cause for making the order does not exist, as follows: 1. If in the superior court, to another superior court.....” (Code Civ. Proc., sec. 398.)

It is undoubtedly true that if the motion had been entertained by Judge Law, and there had been no other, judge present qualified to hear the motion, it would have been his duty to grant it. (Barnhart v. Fulkerth, 59 Cal. 130; Livermore v. Brundage, 64 Cal. 299; Finn v. Spagnoli, 67 Cal. 330.) But it has been held here that if the judge who is holding court at the time the motion is heard is qualified to try the case, and ready and willing to try it, the motion should be denied, the court saying that “the provision upon which the appellant relies was intended to secure to litigants a trial before a judge who is not disqualified from acting as such, and nothing more. (Paige v. Carroll, 61 Cal. 216.)