Johnston v. Brown

California Supreme Court Jan 28, 1897 No. S. F. No. 353Published

Before: Harrison

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Holding. The court held that a judge is disqualified under the Code of Civil Procedure when a relative within the third degree acts as an attorney for a party, regardless of whether that attorney is of record or compensated. The trial court's factual determination regarding the attorney's participation in the case is conclusive when based on conflicting evidence.

Issues

Whether a judge is disqualified under section 170 of the Code of Civil Procedure when a relative within the third degree acts as an attorney for a party.
Whether the trial court's finding that an attorney participated in a case is subject to review when based on conflicting affidavits.
Whether the doctrine of res judicata applies to motions in a pending action.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the court found that Mr. Hudner was, in legal effect, one of the attorneys for the defendants within the contemplation of section 170 of the Code of Civil Procedure, and that by reason thereof he was disqualified to sit or act as a judge”

“It was not requisite that Mr. Hudner should be an attorney of record in the case, nor did his relation as attorney for the defendants depend upon their obligation to compénsate him for his services”

“The doctrine of res judicata is not applicable to motions in a pending action.”

Synopsis

Practice — Place of Trial — Disqualification of Judge — Attorney’s Relationship to Judge.—In order to disqualify a judge from sitting or acting in an action or proceeding pending in his court, by reason of his relationship to a person appearing as an attorney for a party thereto, it is not necessary that such person should be an attorney of record, nor does his relation as attorney depend upon the obligation of his client to compensate him for his services, or upon the continuance of a partnership between him and the. attorney of record.

Id.—Conflict of Evidence.—Where the evidence as to the existence of the relation of attorney and client is conflicting, the decision of the trial judge thereon is not open to review on appeal.

Id.—Relation of Attorney and Client.—The fact that at a previous trial of a similar action between the same parties the attorney, who was a relative of the judge, sat at the table in court with his partner, who was the attorney of record, took notes of the evidence, and assisted in the trial of the case, is sufficient to warrant the court in determining between the conflict in the evidence that his relative was in fact an attorney in the cause, and in holding himself disqualified to'try it.

Id.—Granting Motion after Previous Denial.—The denial of an application for a change of the place of trial does not preclude the granting of a similar application subsequently made, as the doctrine of res judicata is not applicable to motions in a pending action.

Harrison, J. Appeal from an order changing the place of trial.

The motion was made upon the ground that the judge of the court was disqualified by reason of being related within the third degree to one of the attorneys for the defendants. At the hearing of the motion it was made [695]to appear that John H. Hudner was the husband of a niece of the Hon. James F. Breen, the judge of the superior court for the county of San Benito, in which the action was pending, and for more than three years prior to the making of the motion had been the general law partner of N. G. Briggs, one of the attorneys of record for the defendants, and was such general law partner at the time of the appearance herein. One of the plaintiffs made an affidavit, which was read at the hearing of the motion, in which she stated “that the said John L. Hudner, Esq., has been acting continuously since the filing of defendants’ answer herein, in conjunction with his law partner, as one of the attorneys in the case, although the answer is signed by his law partner, N. C. Briggs, Esq; that at all times since the appearance of the defendants in this action, said John L. Hudner has been actively engaged in the examination of witnesses and preparation for trial in conjunction with his said law partner, N. C. Briggs, Esq., and as counselor for the defendants herein.” In an affidavit by one of the defendants it was stated “that said Hudner has not been employed by said defendants as one of their, or either of their, attorneys in said action; and that said Hudner has not performed any services in said action, or in any respect assisted defendants in their defense to said action.” It was also stated in this affidavit that Mr. Hudner “has nothing coming to him by reason of any fee due or payable to N. C. Briggs for his services as attorney in said action, nor by reason of any partnership or business association with said Briggs.” The defendants also presented a document signed by Mr. Hudner, by which they were “released” from any and all liability to him as attorney for them, and in which he declared that “I am not an attorney directly or indirectly in said cause, and that I have no interest therein, and will not participate in the trial of the said cause”; and also a document signed by both Briggs and Hudner, by which they agreed that their partnership, “ so far as the same relates to the legal or other services [696]

Johnston v. Brown

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