Johnston v. Dakan

This case is here on appeal from the

judgment and the order denying defendant’s motion for a new trial. The complaint was filed in 1904. When the case came on for trial, October 19, 1905, the defendant claimed that the judge was disqualified under section 170 of the Code of Civil Procedure, which provides that no judge shall sit or act in any action or proceeding “when it appears from the affidavit or affidavits on file that either party cannot have a fair and impartial trial before any judge of a court of record about to try a case, by reason of the prejudice or bias of such judge. ’ ’ It has been held that under the above-quoted section the trial judge may pass upon the question of his own disqualification. (People v. Compton, 123 Cal. 405 , [ 56 Pac. 44 ].) We have no hesitation in saying that in all cases where the facts established by the affidavits. are such as to create in the mind of an honest litigant a sincere belief that he cannot have a fair and impartial trial before the judge in whose court the action is pending, and where the facts are such as to justify a reasonable man in such belief, the ends of justice would be subserved by calling in another judge. The judge should not only be honest and impartial, but his acts and conduct should be such that there can be no foundation for questioning his motives. It' is apparent that the section may be greatly abused by dishonest litigants or unscrupulous attorneys. It is therefore the duty of the trial judge to carefully scrutinize each case, to the end that the law may not be abused for sinister purposes.. If the trial judge is convinced from the facts of the integrity of his own conduct and motives, of the fact that his sole desire is to see the law applied with equal and exact justice to all, and further that the object of the party who alleges the disqualification is to thwart justice, or to get the case before another judge of his own choosing, he should have the courage to act accordingly. On the other hand, where the facts are honestly stated, and when so stated they point to certain conditions that would ordinarily influence men in the business transactions of life, and when applied to the particular case would lead a reasonable person to hesitate as to whether or not the judge could, under the circumstances, considering the weakness of human nature, entirely ignore such facts, there should be no hesitation in calling in another judge, so that the fountain-head of justice should be above suspicion.

It further appears that in a previous trial of one Forgeus against this same defendant, in the same court, and before the same judge, some trouble occurred between this defendant and Mr. Cassin, an attorney of the local bar, and the judge made an order imposing a fine upon defendant, and did not fine Mr. Cassin, while it is claimed that Cassin was the one particularly at fault. Conceding that the judge erred in this, that fact.of itself does not necessarily show any bias or prejudice on the 'part of the judge. It may have been the duty of the judge, in order to maintain the proper respect for the court, to impose the fine, and it may also have been his duty to have imposed a fine upon Mr. Cassin. If the conduct of the defendant in said matter was such as to call upon him the imposition of a fine, it would have been the duty of the judge to impose such fine even if defendant had been his best friend. The law knows no friend, no foe, and no flinching from duty. It is not at all unusual for a litigant to become angry at the judge, and in such moment of anger to believe the judge to be partial—even to abuse him—when in

The fact that the trial judge was indebted to the Savings Bank of Santa Cruz, of which plaintiff is a stockholder and one of the directors, is not a legal disqualification, and, as a matter of law, we cannot say that it shows bias or prejudice. We must presume the trial judge to be honest and solvent.

It is claimed that the court erred in denying the defendant’s application for a continuance. It appears that the ease was called October 19, 1905, at 10 o’clock A. M., being the time fixed for the trial, of which all parties had notice. After the court had heard defendant’s motion to have another judge called in, and made an order denying it, defendant’s counsel stated that he desired time to make a motion for a change of venue. The court thereupon continued the case until 2 o’clock P. M. in order to allow counsel for defendant to prepare his affidavits for use on his motion for a change of venue. Defendant’s counsel prepared and served his affidavits and notice that he would move the court for a change of venue on October 27th. Counsel for plaintiff prepared and served his counter-affidavits, and asked that the court proceed to hear the matter, whereupon defendant’s counsel refused to proceed with the motion, claiming that he had five days under the law to give notice before the hearing. The court held otherwise, and counsel for defendant refused to present the motion, or to proceed with the trial, and left the courtroom, stating, “I leave the courtroom at this time because the court has no authority to go ahead with the trial.”

As the defendant’s counsel had voluntarily left the courtroom, and defendant was not present, the court, upon the suggestion of plaintiff’s counsel, continued the case until 4 P. M. of the same day, and issued a subpoena for the defendant. At 4 o’clock the defendant appeared, and the judge stated to him the fact that his attorney had left the courtroom, and suggested that he was entitled to an attorney, and that he should employ one; and for the purpose of enabling the defendant to secure counsel the court of its own volition continued the case until the following day, October 20th, at 10 o’clock A. M. The next morning, at 10 o’clock, the defendant appeared, but without an attorney, and announced that he was unable to find his attorney, Mr. Younger, Sr., but did not state that he had made any attempt to find any

Under these circumstances we do not think that the court abused its discretion in refusing to continue the case. The defendant had ample notice of the time of the trial. His attorney, evidently in a moment of anger, left' the courtroom instead of staying at his post of duty and presenting his client’s defense. The court thereupon, out of an abundance of caution, took an adjournment, and gave defendant additional time to procure counsel. As before stated, none was procured, and the case proceeded to trial.

We find no error in the record, and the judgment and order are affirmed.

Hall, J., and Kerrigan, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on January 12, 1909, and a petition ? to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 11, 1909.