Citations
- 216 Cal. App. 2d 154
Full opinion text
FOURT, J.
Plaintiff has filed two separate notices of appeal. The first notice of appeal (filed October 9, 1961) discloses that plaintiff appeals “from the Judgment made and entered in said action, and from the Order denying plaintiffs [sic] Motion for New Trial in said action, and from the Order striking from the files the Declaration of plaintiff of bias and prejudice held by judge [sic] Benjamin Landis against plaintiff in said action. ’ ’ The second notice of appeal (filed January 17, 1962) discloses that plaintiff appeals “from the Order made and entered in said action on December 1, 1961, denying motion of said plaintiff for preparation of transcripts on appeal in said action in forma pauperis and at public expense.”
Before consideration of the appeal from the judgment we will dispose of plaintiff’s various appeals from the various orders.
First, the purported appeal from the order denying his motion for a new trial-. “An order denying a motion for a new trial has not been appealable since the 1915 amendment to Code of Civil Procedure, section 963.” (Leventhal v. Ollie Morris Equip. Corp., 184 Cal.App.2d 553, 558 [7 Cal.Rptr. 911].)
Second, the purported appeal from the order denying the motion for the preparation of the transcripts on appeal at public expense: A litigant in a civil action is not entitled to a transcript on appeal at public expense. (Gov. Code, §§ 69953, 70051; Cal.Rules of Court, rules 4(c) and 5(c); Legg v. Superior Court, 156 Cal.App.2d 723, 724-725 [320 P.2d 227]; Kaufman v. Brown, 106 Cal.App.2d 686, 688 [235 P.2d 632]; Barclay v. Superior Court, 104 Cal.App. 789 [194 P. 1122]; Rucher v. Superior Court, 104 Cal.App. 683, 685-686 [286 P.732].) Furthermore, no appeal lies from this order. It is not the type of “special order made after final judgment” contemplated by Code of Civil Procedure, section 963, subdivision 2, in that it does not affect the judgment in some manner or bear some relation to it either by way of enforcing it or staying its execution. (See Harmon v. Harmon, 184 Cal.App.2d 248 [7 Cal.Rptr. 280].)
Third, the appeal from the order striking plaintiff’s declaration of bias and prejudice from the files: The chronology of significant events is as follows:
A minute order dated June 9, 1961, reflects that the within action was transferred from department 1 of the superior court (i.e. master calendar department) to department 20 (i.e. Judge Landis’ department). This minute order provides in pertinent part as follows:
“. . . Counsel confer with the Court in chambers. In open Court, Plaintiff’s motion to proceed in forma pauperis is argued and submitted, pursuant to the Court’s memorandum signed and filed this date, a copy of which is mailed to all parties.[] Trial is continued to June 12, 1961, at 9 :30 a.m.”
Minute order dated June 12, 1961, reflects that the trial resumed and that both parties made opening statements; witnesses were examined and exhibits introduced into evidence. The minute order then sets forth that “Trial is continued to June 13, 1961, at 9:30 a.m.”
Minute order dated June 13, 1961, indicates that the trial resumed, witnesses testified and additional exhibits were introduced into evidence. It then provides that “Trial is continued to June 14,1961, at 9:30 a.m.
The minute order dated June 14, 1961, is similar to the previous minute orders. It then sets forth that “Trial is continued to June 15, 1961, at 9 :30 a.m. ’ ’
The minute order dated June 15, 1961, is similar to the previous minute orders. In addition, however, it discloses that “Plaintiff and defendants waive their rights to a jury trial herein.’’ (Italics added.)
Minute orders dated June 19, 20, 22, 23, 26 and 27 are similar to previous minute orders. The minute order dated June 28, 1961, provides in pertinent part as follows:
“Trial resumes, continued from June 27, 1961, with all counsel present as before. . . . Plaintiff’s motion to amend his second amended complaint to conform to the proof is argued and granted. Plaintiff rests.
“Defendants’ motion to amend their answer to conform to the proof, is granted. Both sides rest. The cause is argued by both sides and submitted. ’ ’
The minute order dated July 3, 1961, provides as follows: “Cause, heretofore submitted on June 28, 1961, the Court now renders its decision as follows:
Judgment is for the defendants. Each side to bear their own costs of suit incurred herein. Counsel for the defendants is ordered to prepare findings of fact, conclusions of law and judgment in accordance with the Memorandum of Decision signed and filed this date. Both sides notified by mail this date. ’ ’
The trial court’s memorandum opinion and a nunc pro tunc memorandum were filed July 3,1961.
On July 19, 1961, plaintiff filed an application for extension of time to and including July 31, 1961, to serve and file his objections to defendants’ proposed findings of fact and conclusions of law. Plaintiff’s application was approved and so ordered.
On July 28, 1961, plaintiff filed a similar application seeking an additional extension of time to and including August 11, 1961. This application was likewise approved and so ordered by Judge Landis.
Plaintiff filed his objections to defendants’ proposed findings and conclusions of law and a request for special findings on August 11,1961.
Defendants’ findings of fact and conclusions of law were filed on August 14, 1961. Judgment was filed and entered the same day.
On August 23, 1961, plaintiff filed a notice of- intention to move for a new trial. At the same time he also filed a “declaration of plaintiff of bias and prejudice held by Judge Benjamin Landis against plaintiff (Code Civ. Proc., § 170).”
A minute order dated August 28, 1961, discloses that the declaration was ordered stricken on the court's own motion.
As reflected by the chronology of events herein set forth the trial was an extensive one and not one word of protest against the trial judge was uttered by plaintiff before or during the trial. In fact, on June 15, 1961, plaintiff expressly waived any right to proceed in trial with a jury and elected to continue the case as a trial by the judge without a jury.
The case of People v. Sweeney, 55 Cal.2d 27 [9 Cal.Rptr. 793, 357 P.2d 1049], is relevant to the question of the trial court striking plaintiff’s declaration. It is stated at page 35 thereof as follows in pertinent part:
“. . . section 170 requires the affidavit of bias and prejudice to set forth ‘the fact or facts constituting the ground of the disqualification of such [the trial] judge.’ A statement that contains nothing but conclusions and sets forth no facts constituting a ground of disqualification may be ignored or stricken from the files by the trial judge. (Keating v. Superior Court, 45 Cal.2d 440, 443 [289 P.2d 209]; People v. Lyon, 135 Cal.App.2d 558, 585 [288 P.2d 57]; Ephraim v. Superior Court, 42 Cal.App.2d 578, 579 [109 P.2d 378].) Where the statement is insufficient the judge can so determine, whereupon the procedure provided by section 170 is not applicable. (People v. Darby, 114 Cal.App.2d 412, 439 [250 P.2d 743].) [3] ‘Where no facts are set forth in the statement there is no issue of fact to be determined. It is only where an appropriate issue of fact is presented by the statement that a judge is prevented from passing on the question of his own disqualification under section 170. ’ (Mackie v. Dyer, 154 Cal.App.2d 395, 399 [316 P.2d 366].) Defendant’s affidavit charging Judge Phone with prejudice stated no facts but only conclusions, and it was properly ignored.” (Italics added.)
In addition to the fact that plaintiff’s declaration was insufficient there is a principle to the effect that a party should not be allowed to gamble on a favorable decision and thereafter raise an objection that the trial judge was biased and prejudiced in the event the litigant is disappointed in the result. (See Rohr v. Johnson, 65 Cal.App.2d 208 [150 P.2d 5].) Such an attempt to play fast and loose with the administration of justice will not be tolerated.
Having disposed of plaintiff’s purported appeals from the various orders, we now turn to the appeal from the judgment.
The first problem presented is to ascertain the vehicle by which plaintiff attempts to present this appeal. The chronology of significant events is as follows:
August 14, 1961—Judgment filed and entered.
October 3,1961—-Plaintiff’s motion for new trial denied.
October 9, 1961—Plaintiff’s notice of appeal (from the judgment, order denying his motion for new trial and from order striking the declaration of bias and prejudice) filed.
October 18, 1961—Plaintiff filed notice that he “intends to and will proceed on the appeal heretofore herein filed by a Clerks [sic]