Broder v. Conklin
Before: Harrison
Synopsis
Appealable Ceder—Change of Venue—Disqualification of Judge — Review upon Appeal—Presumption.—An order transferring a cause from one county to another for disqualification of the judge is an appealable order, and can be reviewed only upon a direct appeal therefrom; and it will be presumed, upon a collateral appeal from an order made in the court to which the cause was transferred, that the judge who transferred the cause was disqualified, and that it was transferred to the nearest court in which the like objection did not exist.
Power of Judge after Expiration of Term—Completion of Trial__Upon the expiration of the term of office of a judge his judicial power ceases, and it is not competent for Mm thereafter to do any act necessary to complete the trial of any cause which remains unfinished at the expiration of his term.
Id.—Trial, when Completed—Filing of Decision—Conclusions of Law The trial of an action is not completed until a decision has been given in writing and filed with the clerk which states the conclusions of law upon which the judgment is to rest. . j
Id—Findings—Order for Interlocutory Judgment—Incomplete Trial__ Where the trial judge filed his findings of fact and certain conclusions of law in an action tried before him, in which he found “ that the plaintiffs herein are entitled to judgment,” but qualified that conclusion by adding as a closing direction that “ counsel will prepare an interlocutory judgment in favor of the plaintiff's, directing a reference to a commissioner to he appointed by the court to take an account between the parties,” it sufficiently appears that at the time of the filing of such findings of fact and conclusions of law the trial of the action was not completed.
Id.—Judgment Signed but not Filed before Expiration of Term—Setting Aside Void Judgment.—The tact that the judgment was signed by the trial judge before the expiration of his term of office did not render it effective as a judgment, where it was not filed until after the expiration of his term of office, and the entry of the judgment so filed is void, and should be set aside.
Id.—Insolvency—Fraud — Action for Accounting by Trustee—Finding—Incomplete Adjudication—Authority of Clerk. —In an action to declare the defendant guilty of fraud in the matter of an insolvent’s estate, and that he holds certain property in trust for the benefit of the plaintiffs, and for an accounting of the moneys received .by him under the trust, a finding by the court “that the plaintiffs herein are entitled to judgment,” but leaving the principles of the accounting to be determined and other matters to be adjudicated, is not a sufficient determination of the cause to authorize the entry of judgment thereon by the clerk.
Harrison, J. — A trial of the issues herein was had in Inyo County before Hon. J. F. Rooney, judge of the superior court of Tuolumne County, who had been directed by the governor to try the cause on account of the disqualification of the superior judge of Inyo County, and on the 26th of September, 1890, the judge filed his findings of fact and conclusions of law, in which he found “ that the plaintiffs herein are entitled to judgment,” and added as a closing direction, “counsel will prepare an interlocutory judgment in favor of the plaintiffs, directing a reference to a commissioner to be appointed by the court to take an account between the parties.”
Between the hours of six and seven o’clock in the afternoon of January 5, 1891, the clerk received through the mail a document, signed by Judge Rooney, which purported to he a formal judgment in the case, and which the clerk afterwards entered in the judgment-book of Inyo County. Judge Rooney’s term of office expired on the first Monday of January, 1891, and the newly elected judge of Inyo County had assumed his office on the morning of that day. On the 9th of February, 1891, the defendants Conklin gave notice to the plaintiffs that, on the ninth day of March, 1891, they would move the court “ to strike from the files, and to strike out and cancel and set aside” the [362]aforesaid judgment upon the grounds that the trial of the cause had not been completed, and that at the time the said document was filed the term of office of Judge Rooney had expired. The judge of Inyo County, deeming himself disqualified to act in the matter, the cause was thereafter transferred by him to Mono County for trial, and the above motion having been brought on for hearing in the superior court of Mono County, an order was made on the 13th of May, 1892, granting the aforesaid motion of the defendants. From this order the plaintiffs have appealed.
1. Upon this appeal the regularity of the proceedings in transferring the cause to Mono County cannot be considered. If any condition of facts could exist under which the transfer would be authorized, the action of the court in making the transfer will be upheld whenever collaterally attacked. Section 170 of the Code of Civil Procedure prohibits a judge from sitting or acting in any action in which he may be disqualified, except that he may transfer the action to some other court; and section 398 of the same code provides that, if an action is “pending” in a court, and the judge thereof is disqualified from acting, it must be transferred to the nearest court where the like objection does not exist. We may assume upon this appeal, not only that the judge of Inyo County was disqualified from acting in the cause, but also that the superior court of Mono County was the nearest court in which the like objection did not exist. If for any reason the order of transfer was erroneous, it could have been reviewed by a direct appeal therefrom.
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