Burton v. Covarrubias

SHAFTER, J. This appeal is from an order denying a change of venue. The correctness of the order depends upon whether the suit was pending when the motion was made— and that depends upon the validity of an order dismissing the action for want of prosecution made in 1861. The term of the court at which this order was made was held by the Hon. Joaquin Carillo, Judge, who was related to the defendant within the third degree. The order dismissing the action was null and void on the ground of the incapacity of the judge to act, as was held by us in People v. De La Guerra, 24 Cal. 73. That case was fully considered, and on a review of the whole subject we are satisfied that the decision is correct.

[210]The order appealed from is reversed, and the court below is directed to enter an order transferring the case to a district court in and for the city and county of San Francisco, or to the district court in and for the county of Monterey in pursuance of the stipulation of parties.

We concur: Sawyer, J.; Rhodes, J.; Currey, 'J.; Sander-son, C. J.