BLACKMAN v. MacCOY (1959)

District Court of Appeal, Second District, Division 2, California.

A. J. BLACKMAN, Elizabeth B. Johnson, and George Batchelor, Petitioners and Respondents, v. Charles B. MacCOY, Judge of the Municipal Court of Los Angeles Judicial District, County of Los Angeles, State of California, Defendant and Appellant.

Civ. 23448.

Decided: May 22, 1959

Harold W. Kennedy, County Counsel, Robert C. Lynch, Deputy County Counsel, Los Angeles, for appellant. Marvin Zinman, Los Angeles, for respondents. Stanley Mosk, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., County of Los Angeles, Manley J. Bowler, Chief Deputy Dist. Atty., John W. Dickey, Deputy Dist. Atty., Los Angeles, amici curiae on behalf of respondents.

On petition for rehearing appellant seeks to raise for the first time a point not previously argued, viz., that the affidavit of bias and prejudice related only to the personal disqualification of the appellant and not to the jurisdiction of the municipal court. This contention was not set forth by appellant in his briefs nor in oral argument, and will not be considered for the first time on a petition for rehearing. As stated in Smith v. Crocker First Nat. Bank, 152 Cal.App.2d 832, 836–837, 314 P.2d 237, 241: ‘Counsel are not permitted to argue their cases in a piecemeal fashion and points not previously argued will not be considered where raised for the first time on petition for rehearing. (Citations.)’ As the question of the superior court's jurisdiction to grant the peremptory writ as issued is not involved, the rule noted in Sime v. Malouf, 95 Cal.App.2d 82, 116, 212 P.2d 946, 213 P.2d 788, regarding rehearings to consider jurisdictional questions is not applicable.

The petition for rehearing is denied.

PER CURIAM.

ASHBURN, J., is of the opinion that the petition should be granted.

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