Caminetti v. Pac. Mut. Life Ins. Co. of Cal.

GIBSON, C. J. This is an appeal from an order refusing to vacate certain orders affirmed in a companion ease decided herewith (Caminetti v. Pacific Mutual Life Ins. Co. of California, ante, p. 344 [139 P.2d 908]), all of which orders were made by the Superior Court of Los Angeles County in a statutory proceeding involving the Pacific Mutual Life Insurance Company of California.

As more fully appears in the companion case, ante, p. 344 [139 P.2d 908], in accordance with a plan of rehabilitation of the Pacific Mutual Life Insurance Company of California, a new company known as the Pacific Mutual Life Insurance Company was organized and its entire stock was held by the then Insurance Commissioner. Later, however, the [388]stock of the new company was transferred by a voting trust agreement to five persons named therein as voting trustees. When the present commissioner succeeded to the office he sought an order invalidating the voting trust agreement. The appellants, Neblett and others, also sought similar relief by motion. On May 8, 1940, the superior court, Judge Vickers presiding, denied both motions. Appellants Neblett et al., thereupon moved to vacate the above orders on the ground that Judge Vickers was disqualified by reason of relationship to a party, and' upon other grounds relating to the jurisdiction of the court. The motion to vacate was heard before a different judge and was denied on June 3, 1940. In the companion case this day filed, ante, p. 344 [139 P.2d 908], we have affirmed the orders made by Judge Vickers denying the motions of the commissioner and of Neblett et al., to set aside the voting trust agreement. In the present appeal, appellants Neblett et al., challenge the order denying their motion to vacate Judge Vickers’ orders because of his alleged disqualification.

In denying the motion to vacate the orders refusing to set aside the voting trust, the court refrained from determining whether Judge Vickers was disqualified to make such orders and found that such disqualification, if any existed, had been waived by the appellants.

Whether the disqualification was waived turns upon the construction and application to be given to section 170 of the Code of Civil Procedure. The section provides in part that “No justice, judge or justice of the peace shall sit or act as such in any action or proceeding: 1. To which he is a party; or in which he is interested other than as a holder or owner of any capital stock of a corporation, or of any bond, note or other security issued by a corporation; 2. In which he is interested as a holder or owner of any capital stock of a corporation, or of any bond, note or other security issued by a corporation; 3. When he is related to either party, or to an officer of a corporation, which is a party, or to an attorney, counsel, or agent of either party, by consanguinity or affinity within the third degree . . . ; provided, however, that if the parties appearing in the action and not then in default ... or the attorney for any of the above named, or the party or his attorney in all other or special proceedings, shall sign and file in the action or matter, a stipulation in writing waiving the disqualification mentioned in this subdivision or in subdivisions 2 or 4 hereof, the judge or court may proceed with the