S. Cal. Motor Rd. Co. v. San Bernardino Nat'l Bank

Belcher, C. —This action was commenced in the superior court of San Bernardino county, and in due time the plaintiff moved that the place of trial be changed to another county, upon the ground that both of the judges of the court in which it was pending were disqualified to try it. The motion was heard before Hon. John L. Campbell, one of the judges of the said court, and denied, and from that order the plaintiff appeals.

It does not appear from the transcript what the character of the action is, but it is said in the brief for respondents that it was “ brought by appellant against respondents to obtain a judgment that a certain informally executed promissory note, given by appellant to respondent, the San Bernardino Hational Bank, is not the promissory note of appellant, and seeking, as inci[319]dental relief, to have said bank enjoined from, a threatened sale of certain first-mortgage bonds of appellant, pledged to secure the payment of said promissory note.”

The affidavit on which the motion was based was made by R W. Button, the president of the corporation plaintiff, and, as to Judge Campbell, it stated, in substance, that he, as plaintiff, had brought an action in the superior court of San Bernardino county against the said corporation and I. H. Polk, as receiver thereof, to recover possession of certain land occupied by the corporation’s railroad, and five thousand dollars damages for the alleged unlawful occupation thereof; that the action was still pending and undetermined in the said court, and the effect of the judgment, “ if John L. Campbell should recover it in said case, will be to prevent said Southern California Motor Road Company and said I. H. Polk, as such receiver, from operating its road from the town of Colton to( the city of San Bernardino; that by reason of the existence of said suit and claim of John L. Campbell against said Southern California Motor Road Company and I. EL Polk, as such receiver, I am informed and believe that said John L. Campbell has stated that he considers himself disqualified from trying any case in which the said Southern California Motor Road Company and I. EL Polk, as its receiver, are parties.”

At the hearing of the motion counsel for plaintiff read the affidavit and the complaint referred to therein, and also the notice of the motion and demand for a change of the place of trial. No witnesses were sworn or examined and no other affidavit or testimony was offered, read or heard. The motion was then argued by counsel, and denied, and the plaintiff excepted to the ruling.