Krumdick v. Crump

California Supreme Court Apr 8, 1893 No. 15275Published

Before: Beatty

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Holding. A judge who is disqualified from presiding over a case has a mandatory, non-discretionary duty under section 398 of the Code of Civil Procedure to transfer the cause to another court without delay. The disqualified judge cannot exercise judicial discretion to hear counter-motions or delay the transfer.

Issues

Whether a disqualified judge has the discretion to delay transferring a case to another court based on a counter-motion regarding the convenience of witnesses.
Whether a disqualified judge must immediately perform the statutory duty to transfer a case upon a showing of disqualification.

Disposition. peremptory writ of mandate issued

Quotations verified verbatim against the opinion

“The plain injunction of the statute leaves the disqualified judge in such cases no discretion. He has but one thing to do, and it is his duty to do that thing at once.”

“There is nothing in any of the facts here recited to justify or excuse the respondent for refusing or neglecting to perform the plain statutory duty imposed upon him by section 398 of the Code of Civil Procedure.”

Synopsis

Change of Place of Tbial—Duty of Disqualified Judge. — Under section 398 of the Code of Civil Procedure, it is the duty of a judge before whom an action is pending, and who is disqualified from acting as such, to transfer the cause without delay to some other court where the like disqualification does not exist.

Id.—Disqualification of Judge as Attorney—Counter-Showing—Convenience of Witnesses—Calling en of Another Judge—Mandamus. — Where the uncontradicted affidavits in support of a motion to change the place of trial of an action, for disqualification of the judge, show that the judge had been the attorney for the opposing party in the action, it is the duty of the judge, who knows of his own disqualification, to grant the motion without delay, and without entertaining any counter-motion calling for the exercise of judicial discretion, and he is not justified in refusing or neglecting to act on the motion merely because the opposing party files an affidavit tending to show that the convenience of witnesses requires the retention of the case and the calling in of another judge to try it; and where the judge refuses or neglects to grant the motion, a peremptory writ of mandate will be issued by the appellate court commanding him to grant it.

Beatty, C. J. This is an original proceeding by mandamus. The petitioner is plaintiff in an action (Krumdick v. White) commenced in the superior court of Lake County in the year 1887. The respondent, who was the attorney for the defendant in that actiou, has been since January, 1891, judge of the superior court of Lake County. In December, 1891, the judgment of the superior court of Lake County in the action referred to was reversed by this court, and the cause remanded for a new trial. (Krumdick v. White, 92 Cal. 143.) On the 14th of January, 1892, the remittitur was filed in the superior court, and on the 16th of the same month Mrs. Kvumdick’s attorney duly notified the defendant White that she would on the 1st of February, 1892, move the superior court of Lake County for an order transferring said cause for trial to the nearest superior court, where the like objection or cause for re[118]moval did not exist, upon the ground that the judge of the superior court of Lake County (the respondent herein) was disqualified. This notice of motion was accompanied and supported by a formal demand for a change of the place of trial of said action and by affidavits showing the disqualification of the judge.

On the 1st of February, 1892, said motion came on regularly to be heard before the respondent, but the hearing was continued by him to February 8th, because the defendant in said action was not present. On February 8th, on motion of the defendant’s attorney, opposed by plaintiff’s attorney, the hearing of said motion was again continued to February 15th. On February 15th the hearing was continued by consent to March 14th. On that day the motion was by consent submitted on briefs to be filed by plaintiff in ten days; defendant in fifteen and plaintiff five.

On March 19th the defendant in that action filed and served on the plaintiff an affidavit tending to show that the convenience of witnesses required that said action be not removed to another county, but be retained in Lake County to be tried before some superior judge from some other county, to be called for that purpose. On March 21st the order of March 14th for the submission of the motion on briefs to be filed was vacated by respondent, and a new order to the same effect extending for one week the time of' the respective parties for filing briefs' was entered. Briefs were thereafter filed in pursuance of the last order. At the time of filing her reply brief, April 20, 1892, plaintiff delivered to the respondent all the papers in the case, and her motion was regularly submitted, but it has never been decided. This proceeding to compel the respondent to act upon said motion and to grant it was commenced January 7, 1893, nearly nine months after the motion was submitted.

Krumdick v. Crump

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