HORATIO P. LIVERMORE, Petitioner, v. BENJAMIN BRUNDAGE, Judge of the Superior Court of Kern County, Respondent, 64 Cal. 299

McKee, J. The petitioner is plaintiff in an action against the defendant, who is judge of the court in which the action is pending. Being defendant in the action, and judge of the court in which the action is pending, it was not necessary for the petitioner, in making a motion to transfer the cause, to serve the judge of the court with notice of the motion, as it would be in a motion for a change of venue under the provisions of

section 396 of the Code of Civil Procedure, in a suit before him between •ordinary litigants; for in an action pending in his court, to which he himself is a party, he has no jurisdiction to hear and determine an application for a change of venue. k. Being a party to' the action, the judge was directly interested in the action, and disqualified from acting at all, except so far as the action might be affected by the arrangement of the calendar of his court, or the regulation of the order of business, and except to transfer the case to some other court for trial.

A judge who is a party to a cause pending in his court should not assume to sit in the case (sub. 1, § 179, Code Civ. Proc.); nor has he any authority to retain the case in his court for non-action. The law imposes upon him a single duty in regard to it, and that is to ordér the case to be transferred for trial to the nearest court of an adjoining county, unless it shall be stipulated to transfer it to some other court. .

Section 398 of the Code of Civil Procedure provides as follows : “ If an action or proceeding is commenced or pending in a court, and the judge or justice thereof is disqualified from acting -as such; . ... it must be transferred for trial to a court the ¡parties may agree upon by stipulation in writing, or made in open court, and entered in the minutes; or. if. they do not so agree, then to the nearest court where the like objection or cause for making the order does not exist.” Other than the duty imposed by this provision.of the Code, a judge who is a party to an action or proceeding pending in his court has no discretion in the case.

Let a writ of mandate issue. Boss, J., and McKinstby, J., concurred.