Favorite v. Superior Court

This is an application for a writ of prohibition to prevent the superior court of Riverside County from proceeding in a cause pending in said court wherein the said petitioners are plaintiffs and the Security Investment Company and others are defendants. This proceeding for prohibition was begun in the district court of appeal for the second district and after decision there was transferred to this 'court for rehearing. The original petition was filed on December 16, 1918. An amended petition was filed on December 19, 1918.

Honorable Hugh H. Craig is the regularly elected judge of the superior court of Riverside County, before whom the cause originally came on for disposition. On December 9, 1918, the petitioners here, without notice to the other party, presented to Judge Craig, ex parte, a paper purporting to set forth a motion to change the place of trial in the action. The sole ground for the motion was stated therein as folows: “On account of the disqualification of yourself to try the same.” The fact which caused the disqualification referred to was not stated. Petitioners did not then file said paper, or any papers in the case, but stated to the judge that they would renew the motion on the following day. On December 10, 1918, the petitioners filed an application to change the place of trial of said cause on the sole ground that the wife of the judge was a stockholder in the said corporation and that Judge Craig was for that reason disqualified to try the cause or make any order therein other than to change the place of trial, as prescribed by section 398 of the Code of Civil Procedure. The attorneys for the defendants appeared to this motion and the hearing was postponed to December 12, 1918, on which day the parties appeared, the motion was argued by the respective attorneys and was denied by the court. It was made to appear that the wife of Judge Craig

[1] The cause was submitted on a demurrer to the petition. The facts alleged are therefore admitted to exist. But other facts, though pertinent to the prayer of the petition, cannot be considered.

[2] Upon the argument here, it was stated that Judge Craig had been the owner of stock in the corporation de- ' fendant prior to June 13, 1917, and it was urged that he was and continued thereafter to be disqualified by reason of such fact, so long as his direct liability as a stockholder continued to exist. On this point we need only say that neither in the petition nor in the notice of motion is it alleged that he ever owned any stock in said corporation. The mere recital of the fact that Judge Craig had stated “that he had disposed of all his stock in said corporation to his wife,” is not an allegation of the fact of ownership. It cannot be regarded as such allegation, and particularly in view of the fact that it is not assigned either in the petition or in any

[3] There is no merit in the motion of respondent to quash the writ of prohibition issued by the district court. The motion was based on the claim that the case before the superior court was an action in equity—a case in which appellate jurisdiction is, by the constitution, lodged in the first instance, in the supreme court alone (Const., art. VI, sec. 4), from which fact, it is argued, an original proceeding in prohibition to prevent action by the superior court in such a case is cognizable only in the supreme court. This assumption is not correct. The same section of the constitution gives equal and concurrent jurisdiction to the district courts and to the supreme court to issue writs of prohibition in all proper cases. So far as jurisdiction to do so is concerned, the questions of appellate jurisdiction and of the nature of the action in which the act sought to be prohibited is threatened, are entirely immaterial. As a matter of policy and practice, both this court and the district courts, respectively, have at times refused to take jurisdiction of an original proceeding where the case involved was in the superior court and was originally appealable to the other court.' (Collins v. Superior Court, 147 Cal. 264 , [ 81 Pac. 509 ]; Estate of Turner, 39 Cal. App. 56 , [ 177 Pac. 854 ].) But this practice was not adopted because of any. want of original jurisdiction in such cases in either court. This was expressly stated in the Collins case.

[4] If the fact that the wife of Judge Craig owned stock in the corporation on December 10, 1918, when the application was filed and presented to him as judge of the superior court, is sufficient to disqualify him from sitting or acting as judge in that action, there is no doubt, under our decisions, that it was his duty, upon the fact being established, to grant the application and make an order transferring the case as

The claim that the fact that the wife is a stockhdlder disqualifies the husband from trying the ease as judge rests upon the following language of section 170 of the Code of Civil Procedure: “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; 2. 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, computed according to the rules of law. ” A provision follows for the waiver by the parties of such disqualification under subdivision 2. It is not material here.

The argument is that the wife, as holder of corporate stock, is the owner of an interest in the corporation; that the corpo

The petitioner relies on the decision in Howell v. Budd, 91 Cal. 342 , [ 27 Pac. 747 ], in support of his position. In that case the sons of the judge were the vendees of certain persons claiming heirship to an estate under an executory contract by which such heirs agreed to convey to the sons an interest in the estate, in consideration of their services as attorneys in establishing the heirship. The decision in the case would settle the question of such heirship. The sons were therefore as much interested in the controversy as the parties themselves. Upon a distribution they would not be improper parties and would have a right to appear in respect to their personal interests. The general notice of the proceeding to, be given to all persons would be notice to them as well as to every other person who claimed any interest in the estate. In view of this direct interest as compared with the remote and indirect interest of the stockholders of a corporation, and because of the provisions of the section itself above referred to implying the contrary intention in the case of -corporations, we do not think this case should be extended to include cases like the one at bar. [6] Our conclusion, therefore, is that Judge Craig was not disqualified to act in the matter by rea

We have shown that there is no allegation in the petition to the effect that Judge Craig was himself at any time a stockholder in said corporation. Inasmuch as it may be claimed that his ownership was a matter within his personal knowledge and that he should have taken cognizance thereof at the mere suggestion, it may be proper to present some further considerations on the subject. Upon the hearing in the district court of appeal an affidavit of Judge Craig was filed by the respondents showing that he had not been the owner of any stock in the corporation since the date of June 13, 1917. There is no information obtainable from the record to show that ownership at that date would disqualify him. The cause was submitted, as we have said, upon a demurrer to the petition. The petition does not set forth the complaint in the action pending in the superior court, nor purport to state the substance thereof. No evidence was introduced at the hearing, either in the district court or in this court, as to the character of said action or as to the allegations of the complaint therein. The petitioners in their briefs set forth what purports to be a statement of some of the facts alleged in said complaint. As these Tacts were not alleged, we cannot take notice of them when presented in this manner. It is true that the liability of a stockholder for the debts and liabilities of the corporation is direct and is created as soon as the corporate debt or liability is contracted or incurred (Const., art. XII, sec. 3), so that, if the liability involved in the action was contracted or incurred prior to the disposition by Judge Craig of his stock, as stated in his affidavit, he might still be interested in the action and be disqualified by subdivision 1 of section 170. But there can be no presumption in tMs case that such liability did exist at that time, for we have no facts upon which it could be predicated. Hence, the contention that he is disqualified by reason of his own interest is not sustained by the allegations or proof.

It may properly be suggested that there is no good reason for further contention in the court below upon this subject. By calling in Judge Curtis, Judge Craig has already indicated his intention not to try the case. If it is improper for him to do so, or to choose the judge, under the actual circumstances of the case as they may appear, the objection can

The application for a peremptory writ of prohibition is denied and the proceeding is dismissed.

Wilbur, J., Olney, J., Lawlor, J., Lennon, J., Melvin, J., and Angellotti, C. J., concurred. «