JUDGES: Crocker, J. delivered the opinion of the Court. Cope, C. J. concurring.
OPINION
CROCKER, Judge
On petition for rehearing Crocker, J. delivered the following opinion. Cope, C. J. and Norton, J. concurring.
In the petition for a rehearing in this case, it is urged that the Justice had no discretion under the statute, and that it was his duty to proceed to try the case; but no reason is given for this position. Section 582 of the Practice Act provides that " if either party make affidavit that he has reason to believe, and does believe, that he cannot have a fair and impartial trial before such Justice, by reason of the interest, prejudice, or bias of the Justice, the action shall be transferred to some other Justice of the same or neighboring township." That affidavit was made in this case before the defendant. It would seem that upon the filing of the affidavit, as required by the statute, it would be the duty of the Justice not to try the case, but to transfer it. The fact that it had already been changed once can make no difference, as the object of the law is to provide the parties with a disinterested, unprejudiced, and unbiased tribunal to adjudicate their cause. The party was not barred from applying for the second transfer because the first Justice had ordered the case for trial before the defendant. He might not then have known of the interest, prejudice, or bias of the defendant, and therefore may not have raised any objection, or if he had raised it, might not have been able to substantiate it. He was not therefore estopped from applying for the second charge.
We are referred to the case of Larue v. Gaskins , 5 Cal. 507, in support of the proposition that a mandamus became the proper remedy. In that case the Justice refused to transfer the cause or proceed with the trial, and it was because of this refusal to act that the mandamus became the proper remedy. But where the officer does act, and either transfers the case or proceeds with the trial, the correctness of such action cannot be reviewed by this writ. The same principle is recognized in the case of Purcell v. McKune , 14 Cal. 230.
The petition for a rehearing is denied.