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resort is necessary to the uncertainty of current market value, tue price being fixed by the contract. That the loss of profits in a case such as this is a just element in the admeasurement of damages is abundantly established. (Shoemaker v. Acker, 116 Cal. 239; Tahoe Ice Co. v. Union Ice Co., 109 Cal. 242; McKay v. Riley, 65 Cal. 623.)

No other matters seem to merit specific consideration.

For the reasons given the judgment and ordered appealed from are affirmed.

HENSHAW, J.

We concur:

LORIGAN, J.
MELVIN, J.

L. A. No. 3234. In Bank. March 31, 1915.

*HAZEL M. KEATING, Plaintiff and Respondent, v. EDWARD KEATING, Defendant and Appellant; MRS. VINETTE LEHMAN, Co-respondent.

[1] NEW TRIAL-SETTLEMENT OF STATEMENT-DELIVERY TO CLERK -NOTICE OF PRESENTATION TO JUDGE-WHEN NOT REQUIRED-CONSTRUCTION OF CODE.-A sufficient compliance with sections 650 and 659 of the Code of Civil Procedure in preparing and presenting a statement of the case on a motion for a new trial, is had, where the moving party leaves his proposed statement with the clerk and the adverse party thereafter likewise leaves his proposed amendments thereto, and the judge subsequently receives all of the papers either from the clerk, or from the judge in whose place he presided at the trial, and thereupon in open court fixes a day for the settlement of the statement in the presence of both counsel, notwithstanding the failure of the moving party to give the notice of intention of presentation of the statement to the judge as provided by such sections.

[2] ID.

TRIAL-DISQUALIFICATION OF JUDGE BIAS OR PREJUDICE

--MOTIONS FOR NEW TRIALS-APPLICABILITY OF CODE SECTION.-The provisions of subdivision 4 of section 170 of the Code of Civil Procedure relating to disqualification of judges on the ground of prejudice or bias is applicable to the hearing of motions for new trials, as well as the trial of causes.

[3] ID.-MOTION FOR NEW TRIAL-INDEPENDENT PROCEEDING.—A motion for a new trial is a "trial" and an independent proceeding.

[4] ID.-TRIAL-MOTION FOR CHANGE OF JUDGES-BIAS AND PREJUDICE ABSENCE OF COUNTER-AFFIDAVIT BY JUDGE REFUSAL OF MOTION -ERRONEOUS ORDER.-A refusal to grant a motion for change of judges on the ground of prejudice and bias is erroneous, where no affidavit is subscribed by the judge in answer to that of the moving party, notwithstanding the contradiction of many of the statements in the affidavits of the moving party by the counter-affidavits of other persons.

[5] ID.-ID.-CHANGE OF JUDGES-MOTION MUST BE TRIED ON AFFIDAVITS. A motion for change of judges under section 170 of the Code of Civil Procedure must be tried and determined upon affidavits and upon affidavits alone, without reference to the judge's own knowledge of his state of mind.

[6] ID. NEW TRIAL-IRREGULARITY IN PROCEEDINGS OF COURTBIAS AND PREJUDICE OF JUDGE UNCONTRADICTED AFFIDAVITS-MOTION IMPROPERLY DENIED.-A motion for a new trial on the ground of "irregularity in the proceedings of the court" based upon affi

*On rehearing (48 Cal. Dec. 293).

davits charging the judge with bias and prejudice, is improperly denied, where no counter-affidavit is filed by the judge.

[7] ID. REHEARING OF APPEAL-CORRECTION OF MISSTATEMENT OF FACT AND LEGAL CONSEQUENCES-AFFIDAVITS FOR CHANGE OF JUDGESUSE ON MOTION FOR NEW TRIAL-ERRONEOUS REFUSAL TO CALL IN ANOTHER JUDGE.-It is held on the rehearing of this appeal, which was granted for the correction of an error which inadvertently crept into the statement in the opinion to the effect that the same affidavits as those upon which the demand for a change of judges was based were used on the motion for a new trial, and for further consideration of the effect which a correction of the misstatement might have upon the merits of the controversy, that the conclusion is inevitable from the corrected statement that the trial judge erroneously refused to call in another judge to hear and determine the motion for a new trial, and that such error necessitates a reversal of the ruling, and with that reversal is imposed the duty to call in another judge who shall hear and determine the motion for a new trial.

Appeal from the Superior Court of Los Angeles County-George E. Church, Judge.

For Appellant-J. Wiseman Macdonald and Waldo M. York. For Respondent-James P. Clark; George L. Keefer for Corespondent.

A rehearing was granted in this case for the correction of a statement of fact, mistakenly made, and for further consideration of the effect which a correction of the misstatement might have upon the merits of the controversy. In the previous opinion Mr. Justice Melvin, speaking for the court in bank, said:

"Plaintiff sued for a divorce upon the ground of extreme cruelty and defendant answered. Subsequently the plaintiff having obtained leave of court filed a supplemental complaint charging adultery, and defendant answered the supplemental complaint. Defendant also asked and received permission to file a cross-complaint setting up as cruelty the filing of plaintiff's supplemental complaint charging adultery and other matters. On motion of the plaintiff, Hazel M. Keating, part of his cross-complaint was stricken out. Judgment was in favor of plaintiff upon both grounds, adultery and cruelty, and against Edward Keating also on his cross-complaint. Alimony in the sum of $55,000 was awarded by the decree. He moved for a new trial and his motion was denied on the 4th day of March, 1912. Meanwhile, on March 2, 1912, defendant applied to the trial court for a change of judges, but his application was denied. On March 4th he moved to strike out a portion of the certificate of the judge settling the statement. This motion was denied. Defendant's appeals are from the judgment, from the order denying his motion for a new trial, from the order denying the application for change of judges, from the order striking out a portion of his cross-complaint and from the order denying his motion to eliminate part of the certificate to the engrossed statement on appeal.

[1] "Respondent objects to the consideration of the alleged statement of the case upon which the appeal from the judgment is wholly, and that from the motion for a new trial is partly, based. This objection is founded upon the supposed failure of the appel

lant to comply with sections 659 and 650 of the Code of Civil Procedure in preparing and presenting his said statement of the case. The same objections were urged before the trial court and the learned judge in a written opinion overruled them. The facts are these: On September 2, 1911, defendant's notice of intention to move for a new trial on a statement of the case and affidavits, was filed. On November 16, 1911, the attorneys for defendant left with the deputy county clerk of the department in which the cause had been tried, their proposed statement, which bore an admission of service signed by the attorney for plaintiff. On December 28th plaintiff's attorney left with said deputy clerk plaintiff's proposed amendments to the statement. The judge who tried the case was absent from the county from December 28, 1911, to January 20, 1912. On the last named day he received all of the papers either from the clerk or from the judge of the department, in whose place he had presided during the trial. On that day the judge who had tried the case stated from the bench in the presence of all the attorneys that he would take up the settlement of the statement on January 27, 1912, at a certain hour. On the 20th of January counsel for plaintiff presented his objections, specifying that defendant had not given plaintiff notice at any time that he would present the proposed statement; that notice had been served upon plaintiff within ten days after service of plaintiff's proposed amendments, of defendant's intention to present his proposed statement to the judge who tried the case, and that defendant failed, within ten days after the service of plaintiff's proposed amendments, to deliver the proposed statement and the offered amendments to the clerk of the court for the judge, nor had such delivery been made at any time. It is clear that the statute was substantially complied with. The purpose of the statute is to prevent delay or surprise to the adverse party. No such delay nor surprise occurred. The clerk had the proposed statement immediately after its service on the plaintiff's attorney. When the proposed amendments were prepared and served they were also left with the clerk. While they were not thereafter formally called to his attention or presented by the counsel for the appellant, they were as much in his possession for the judge as if the exact requirements of the statute had been complied with. And the judge received timely notice, upon his return to Los Angeles, of the pendency of the matter of settling the statement, and counsel for plaintiff having received actual notice was present in court. (Curtin v. Ingle, 155 Cal. 55.)

"After the settlement of the statement on motion for a new trial, the defendant, Edward Keating, served upon plaintiff and filed a demand that the judge who had presided at the trial should secure the services of some other judge to hear said motion for a new trial. On the day set for the hearing on motion for a new trial Edward Keating, by his counsel, moved the court for a change of judges in accordance with the demand previously made, and in support of his motion read a number of affidavits tending to show that a member of the judge's family had attended the court sessions during the trial of the case of Keating v. Keat

ing, had shown great interest in the success of the plaintiff in that litigation and had expressed certain views with reference to the case in the presence of the judge. Affidavits were filed in opposition to the request for a change, and the court refused to comply with defendant's desires in the matter. The proceeding was held in contemplation of the fourth subdivision of section 170 of the Code of Civil Procedure. [2] At the outset respondent contends that this section applies only to the trial of causes and not to the hearing of motions for new trials. We can see no reason for this distinction. If, after trial and before the hearing of a motion for a new trial, one of the litigants should discover that the judge who had tried the cause was prejudiced against him, we see no reason why he might not invoke the provisions of subdivision 4 of section 170 of the Code of Civil Procedure. In Estudillo v. Security Loan & Trust Co., 158 Cal. 70, the motion was made at this same stage of the case and the proceeding was not questioned. [3] A motion for a new trial is surely a 'trial' under the principles and the definition announced in Tregambo v. Comanche M. & M. Co., 57 Cal. 505, and such a motion has been held to be an independent proceeding. (Galbraith v. Lowe, 142 Cal. 296.)

[4] "The judge did not subscribe any affidavit in answer to that of the defendant, and appellant's counsel insist that, as Mr. Keating's sworn allegation of the judge's prejudice stands uncontradicted, the refusal to grant the motion was erroneous, under the authority of People v. Compton, 123 Cal. 403, and similar cases. We see no escape from this conclusion. The law of California upon this subject was discussed in an opinion by Mr. Justice Henshaw in the recent case of Bassford v. Earl, 162 Cal. 119, where the following language was used:

[5]""The law governing the conduct of a judge upon the hearing and determination of a motion presented by authority of section 170 of the Code of Civil Procedure has often been discussed and is well settled. The earlier rule announced in Heinlen v. Heilbron, 97 Cal. 107, 31 Pac. 838, that "the fact that a judge had acted in a trial must be held conclusive that in his own opinion he was competent to act, and in such a case he who would attack his right to act therein must show his disqualification by facts of a positive and unequivocal character", by force of section 170 of the Code of Civil Procedure no longer obtains. The matter must be tried upon affidavits and upon affidavits alone. Whatever knowledge may repose within the breast of the judge must now appear by affidavit, or it does not appear at all. Inferences or presumptions arising from the judicial decision in no wise control. The judge "must decide upon the facts averred in the affidavits, without reference to his own knowledge of his state of mind." (Hoyt v. Zumwalt, 149 Cal. 388, 86 Pac. 600; People v. Compton, 123 Cal. 412, 56 Pac. 44; Morehouse v. Morehouse, 136 Cal. 332, 68 Pac. 976.'

"It is true that many of the statements in the affidavits filed by defendant are squarely contradicted by counter-affidavits, but the fact remains that the judge did not deny by affidavit the prejudice which was attributed to him in appellant's sworn statement, and

the law is definitely settled that only by affidavit may that issue be met. Bias might have arisen from the statements admitted in the counter-affidavits. It is idle to contend that the affidavit of Mr. Keating, although positive in form, must of necessity rest upon information and belief and that therefore it should be rejected. Knowledge of facts which might cause a litigant to feel that a judge was prejudiced against him would naturally often be only that to be derived from information conveyed to him by others. Complete and effective denial of such alleged facts, while it might be the basis for a finding by the court that the litigant's conclusions were based upon false premises, would not dispose of the matter of the mental attitude of the judge, which may only be placed of record by his own solemn affidavit. This was lacking, and therefore his denial of the motion was error."

[6] The error which inadvertently crept into the statement is found in the sentence next following: "The same affidavits as those upon which the demand for a change of judges was based were used on the motion for a new trial and appellant contends that the motion should have been granted because of such an irregularity as is contemplated by subdivision 1 of section 657 of the Code of Civil Procedure." The conclusion from this was the necessary one, that the order denying a new trial should be reversed because of the showing of the disqualification, by bias and prejudice, of the judge who had conducted the trial.

[7] Upon the petition for rehearing our attention was specifically directed to the fact that, in connection with and as a part of the motion for new trial, certain affidavits intimating the existence of bias and prejudice were filed by the moving party not later than November, and answering affidavits by respondent in December; but that no affidavit specifically charging bias and prejudice upon the part of the judge was filed in support of the motion for a new trial. Next it was shown that while the motion for new trial was pending, before, indeed, it had been heard, appellant in February filed another independent motion, seeking the amotion of the trial judge and the calling in of another, the ground of this motion being the bias and prejudice of the judge presiding, which bias and prejudice were specifically charged. This motion the judge denied. Thereafter he proceeded to hear and determine the motion for a new trial, upon which motion there was not judicially before him the affidavit or affidavits specifically charging bias and prejudice.

What are the legal consequences which necessarily flow from this state of facts? Everything that has been said by this court in the earlier opinion above quoted is affirmed. Resulting from this is the inevitable conclusion that the trial judge erroneously refused to call in another judge to hear and determine the motion for a new trial. His error in so doing necessitates a reversal of his ruling refusing to call in another judge, and with that reversal is imposed the duty to call in another judge who shall hear and determine the motion for a new trial. The order of the court refusing to grant the motion for a new trial is not, therefore, subject to reversal in the sense that a reversal would be the

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