SAN JOAQUIN LIGHT POWER CORPORATION v. SUPERIOR COURT IN AND FOR STANISLAUS COUNTY

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District Court of Appeal, Third District, California.

SAN JOAQUIN LIGHT & POWER CORPORATION v. SUPERIOR COURT IN AND FOR STANISLAUS COUNTY et al.

Civ. 5793.

Decided: March 18, 1937

Thomas J. Straub and W. R. Dunn, both of San Francisco, for petitioner. Theodore M. Stuart, of San Francisco, for respondents.

In this matter petitioner seeks by a writ of prohibition to restrain Judge Caminetti from further acting in regard to this petitioner in the case of Vandervort v. Southern California Edison Company, a corporation, et al., and to annul an order heretofore made purporting to grant a new trial as to petitioner, one of the defendants therein.

This proceeding is very similar to, and based upon practically the same charges of bias or prejudice as is set forth in Woolley et al. v. Superior Court (Miller & Lux Incorporated v. Superior Court) (Cal.App.) 66 P.(2d) 680. The only difference in the position of petitioner herein is that this petitioner did not join in the statement of disqualification originally filed in those proceedings, and was granted the right to argue its motion for a new trial in the case of Vandervort v. Southern California Edison Company, a corporation, et al., and to file a brief in support thereof.

We have, in an opinion in the case of Woolley et al. v. Superior Court (Miller & Lux Incorporated v. Superior Court), supra, passed upon all of the essential questions here presented, and upon the authority of those cases, the writ of prohibition herein prayed for is denied, as well as the prayer to annul the order granting a new trial.

On Rehearing.

The petition for rehearing is hereby denied.

However, petitioner, San Joaquin Light & Power Company, calls to our attention certain inaccuracies in the opinion which should be corrected. In Woolley v. Superior Court (Miller & Lux Incorporated v. Superior Court) (Cal.App.) 66 P.(2d) 680, referred to in the instant case, we purported to quote from the main opinion in Lindsay–Strathmore Irrigation District v. Superior Court, 182 Cal. 315, 187 P. 1056. Our quotation from that case was from the concurring opinion of Mr. Justice Olney and not from the main opinion, which was rendered by Mr. Justice Shaw and concurred in by Chief Justice Angelotti and Justices Lennon, Wilbur, and Lawlor. The quotation is also inaccurate in that we caused the first line thereof to read, “It would seem to be intolerable * * *” whereas it should have read, “It would seem to me intolerable * * *.”

We also wish to make it clear that petitioner herein, San Joaquin Light & Power Company, and its counsel are before this court in this one proceeding only, they having taken no part in any other effort to disqualify the judge of the trial court. Petitioner herein and its counsel declined to join with counsel in the other motions, but upon the assertion of disqualification of bias or prejudice, assumed a neutral position.

In our opinion in the case of Miller & Lux Incorporated v. Superior Court, Nos. 5799 and 5800, counsel for petitioner herein were noted as attorneys therein, and in the body of our opinion (66 P.(2d) 680) we refer to “defendants” without excluding petitioner from such statement.

In order that there may be no misunderstanding we now wish to correct that implication and state that petitioner herein never joined in any statement of disqualification, and never argued before this court that Judge Caminetti was biased or prejudiced other than as may appear in the present proceeding.

With these corrections the petition for rehearing is denied.

PER CURIAM.

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