Quatman v. Superior Court

By this proceeding petitioners seek a writ of prohibition restraining respondent, Honorable Claude F. Purkitt, from further proeeding in a certain action heretofore begun and now pending in Glenn County, entitled

It appears from the petition that on or about the eleventh day of April, 1923, an action was begun by the said Barceloux against the Sacramento Valley Realty Company, a corporation, praying for the appointment of a receiver and for other appropriate relief. That at the time of the filing of the complaint by the said Barceloux the respondent made an order to show cause returnable on the twenty-first day of April, 1923, directed to defendant, Sacramento Valley Realty Company, commanding it to be and appear on said twenty-first day of April, 1923, to show cause why a receiver should not be appointed and at the same time issued a temporary restraining order prohibiting the Sacramento Valley Realty Company from mortgaging or otherwise disposing of any of its personal property. On the twenty-first day of April, 1923, the hearing of the order to show cause was continued until the twenty-eighth day of April, when a hearing was had and a receiver thereafter appointed.

At the time of the beginning of the action by Barceloux against the Sacramento Valley Realty Company, the respondent Purkitt was the owner and holder of a promissory note, dated June 6, 1920, for the sum of $301.60, made, executed, and delivered to him by the Sacramento Valley Realty Company payable sixty days after date, and also was the owner and holder of an account against said Sacramento Valley Realty Company in the sum of $27.35.

On the twenty-sixth day of April, 1923, as admitted by the proceedings, for the sole purpose of removing any disqualification of the judge, owing to his being a creditor of the corporation, if in fact such disqualification existed, the plaintiff Barceloux caused one Leo A. Mitchell to purchase the said promissory note and account from the respondent Purkitt, the plaintiff Barceloux furnishing the money with which to make such purchase. Thereupon the respondent indorsed said promissory note in the following words: “pay to Leo A. Mitchell or order, signed Claude F. Purkitt,” and at the same time assigned and transferred to the said Mitchell all his interest in the account hereinbefore referred to. There

Upon this state of the facts it is insisted by the petitioners that the respondent is disqualified under the provisions of subdivision 1 of section 170 of the Code of Civil Procedure, for the reason that the respondent at all times during the proceedings had and taken in the case of Barceloux v. Sacramento Talley Realty Co. was a party interested, in that at the time of the filing of the complaint and issuance of the temporary restraining order and order to show cause he was a creditor of the defendant in the action begun by the plaintiff Barceloux, and that he was an indorser on the note issued by the Sacramento- Valley Realty Company and liable as such until on or about the fourth day of September, when the words “without recourse” were added to the indorsement of the promissory note theretofore indorsed by the said respondent; and that under the law his liability on said note is still such -as to constitute him a party in interest.

[1] The law is well settled that in order to disqualify a judge under the first subdivision of section 170 of the Code of Civil Procedure, the interest must be a pecuniary one, either direct or indirect, -or as said in the case of Lassen Irr. Co. v. Superior Court, 151 Cal. 357 [ 90 Pac. 709 ], “the interest which will disqualify a judge under the provisions of this section is a personal or property interest, an interest in the event of the suit, in the judgment which may be rendered and not a mere sentimental interest.”

It is insisted by counsel for respondent that no disqualification ever existed and that if any disqualification ever did exist the indorsement of the note and assignment of the account held by the learned judge against the Sacramento Valley Realty Company removed the same.

That such disqualification, save and except as to the formal matters of procedure specified in section 170 of the Code of Civil Procedure, existed on the part of respondent at the time of the beginning of the action by Barceloux v. Sacramento Valley Realty Co., of which company the respondent was then and there a creditor, scarcely appears- to be a debatable question. In the case of Adams v. Minor,

Several cases have been called to the attention of the court where the disqualification has been removed after the beginning of the action and thereafter the disqualification was held to no longer exist. It does not appear, however, in the cases cited that the courts are governed and controlled by the same statutory provisions as exist in this state. It does appear, however, in some of the cases that the claim, account, or note held by the presiding judge against one of the parties and for which it was said to disqualify him from acting therein, had been actually paid and thus put out of existence and not merely transferred or assigned to other persons. In the case at bar the note and account are still in existence, the receiver appointed to take charge of the property is authorized to collect the assets of the company and discharge its indebtedness. Upon the conclusion of the receiver’s duties it would be necessary for him to render an account to the court appointing him of all and singular the acts done and performed by him under such authorization which would necessarily include passing upon by the court of the two items hereinbefore referred to, to wit, the

Upon the hearing of this petition there was some evidence to the effect that at the time of the assignment of the account and indorsement of the note by the respondent to Mitchell, the respondent stated to Mitchell in substance to the effect “that this is your funeral and not mine.” Though admitted without objection, such oral testimony is clearly inadmissible and cannot be given any weight as to modifying, qualifying, or limiting the obligation of the parties concerned. [2] The authorities are all to the effect that in the ease of a blank indorsement or an indorsement without limitation, qualification, or restriction, oral testimony is inadmissible to show any agreement between the indorser and the indorsee of a promissory note, that the note was to pass without recourse; the effect of such evidence would be to controvert the unambiguous terms of the contract as evidenced by the written indorsement. (Aronson v. Nurenberg, 218 Mass. 376 [ 105 N. E. 1056 ] ; Security Nat. Bank v. Pulver, 131 Minn. 454 [ 155 N. W. 641 ], Also eases cited in notes 25 and 26 of sec. 3119, Civ. Code, Kerr’s Cyc. Codes.)

[3] Irrespective of whether such testimony is admissible, did the adding of the words “without recourse” in the indorsement on the promissory note referred to on the fourth day of September, 1923, remove the disqualification of the Honorable Claude F. Purkitt to further proceed in the case of Barceloux v. Sacramento Valley Realty Co.? We think not. [4] The authorities are practically unanimous to the effect that it does not fpllow that one who exempts himself from liability as an indorser by using the expression “without recourse” or its equivalent stands free from all obligation in respect to the indorsement. His undertaking, notwithstanding the qualified indorsement, may be a substantial one, for it seems clear that he divests himself of none of the liabilities of the vendor of the paper. [5] In other words,

It is further insisted on the part of respondent that the writ of prohibition should not issue herein for the reason that other remedies exist. Such remedies, however, do not appear to the court to be speedy or adequate. [6] Where a judge is disqualified to act in any proceeding or cause the disability necessarily enters into all orders and decisions made by him other than those specially excepted and provided for in the codes, and to refuse the writ on the ground that a remedy might be had in another manner would be to permit the trial to proceed to a final conclusion by the disqualified judge and then set aside the proceedings as void ab initio. Where a receiver has been appointed to take charge of property such a course would not be either speedy or adequate but would in all probability lead to an entire dissipation or at least material loss of property. The cases of Lindsay-Strathmore Irr. Dist. v. Superior Court of Tulare County, 182 Cal. 315 [ 187 Pac. 1056 ], and Consolidated Adjustment Co. of California v. Superior Court of the County of Sonoma, 189 Cal. 92 [ 207 Pac. 552 ], appear to be conclusive answers to this contention. In both those cases the writ was granted, irrespective of the fact that the same ends might have been accomplished by the long and tedious course

Finch, P. J., and Hart, J., concurred.

A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 20, 1923.