Opinion
Rehearing 22 Cal. 3 at 37.
Appeal from the County Court of Solano County.
COUNSEL:
The respondent had no authority to entertain and grant the application of defendant to change the place of trial; or, if he had such authority, the determination of the application in this case was a nullity, because the effect of it is to reverse the decision of Justice Riddell, which had become the law of the case.
It was competent for the parties, at the time the application was made in Justice Riddell's Court, to have contested the question as to the place of trial, and to have brought to the notice of the Court any objection they might have to trying the case in the Court of respondent; having failed to do so, we insist that the original order of Justice Riddell fixed the place of trial, and thus far became the law of the case. Nor do we conceive that the provisions of the statute, giving the Justice to whose Court the action is transferred full jurisdiction over the case, militates against this view. It simply provides that " the Justice to whom an action may be transferred by the provisionsof this Sec. 582, shall have and exercise the same jurisdiction over the action as if it had been originally commenced before him," and gives him jurisdiction to try and determine the case as it comes to him, but not to re-try it as to any questions already passed upon; for in such case, he might with propriety re-transfer the case to the Court of the Justice before whom it was originally brought. The rule established by Sec. 582 of the Practice Act is at variance with the general policy of law, in allowing the party to exercise his caprice as to the Court in which his case is to be tried, on a simple affidavit of belief; and we submit that there is no good reason why it should receive any other than a strictly literal construction. In other Courts, a party must show actual facts constituting good reasons for the change.
The question raised here is not open to correction by appeal, as we have only the right of appealing from a judgment, and the cases of Larue v. Gaskins , 5 Cal. 507, and Purcell v. McKune , 14 Id. 230, are in point as to our right to this remedy. If the action of the respondent in this case be sustained, it results that a cause of this kind may be sent toevery Court in the county, seriatim, and never be tried. The provisions of the statute are imperative, and leave only to the discretion of the Justice the fixing the place of trial. If his action in this respect has no force or effect, the determination of an action may be indefinitely postponed upon affidavits.
Whitman & Wells, for Appellant.
No one marked for Respondent.
JUDGES: Crocker, J. delivered the opinion of the Court. Cope, C. J. concurring.
OPINION
CROCKER, Judge
On petition for rehearing Crocker, J. delivered the following opinion. Cope, C. J. and Norton, J. concurring.
In the petition for a rehearing in this case, it is urged that the Justice had no discretion under the statute, and that it was his duty to proceed to try the case; but no reason is given for this position. Section 582 of the Practice Act provides that " if either party make affidavit that he has reason to believe, and does believe, that he cannot have a fair and impartial trial before such Justice, by reason of the interest, prejudice, or bias of the Justice, the action shall be transferred to some other Justice of the same or neighboring township." That affidavit was made in this case before the defendant. It would seem that upon the filing of the affidavit, as required by the statute, it would be the duty of the Justice not to try the case, but to transfer it. The fact that it had already been changed once can make no difference, as the object of the law is to provide the parties with a disinterested, unprejudiced, and unbiased tribunal to adjudicate their cause. The party was not barred from applying for the second transfer because the first Justice had ordered the case for trial before the defendant. He might not then have known of the interest, prejudice, or bias of the defendant, and therefore may not have raised any objection, or if he had raised it, might not have been able to substantiate it. He was not therefore estopped from applying for the second charge.
We are referred to the case of Larue v. Gaskins , 5 Cal. 507, in support of the proposition that a mandamus became the proper remedy. In that case the Justice refused to transfer the cause or proceed with the trial, and it was because of this refusal to act that the mandamus became the proper remedy. But where the officer does act, and either transfers the case or proceeds with the trial, the correctness of such action cannot be reviewed by this writ. The same principle is recognized in the case of Purcell v. McKune , 14 Cal. 230.
The petition for a rehearing is denied.