State of Turner , 39 Cal. App. 56 ( 1918 )


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  • The petitioner here, in person, heretofore presented a petition for an alternate writ of prohibition directed to the judge of Department 8 of the superior court of *Page 57 the state of California, in and for the city and county of San Francisco, commanding him "to cease and desist from threatening, oppressing or intimidating petitioner on any hearings of said matter, or from fining or otherwise penalizing him for his efforts to enforce his rights" in and to the above-entitled estate, which the petitioner alleges is pending probate in said superior court.

    The petition cannot be acted upon by the court in its entirety because of the fact that the judge against whom the writ is requested is now sitting as a justice pro tem. of this court, and said judge is disqualified by constitutional provisions from participating in any case or proceeding sought to be reviewed in which he sat as the trial judge. Without consultation with said judge, we have concluded that the writ should be denied because it pertains to a probate proceeding in which this court would not have original appellate jurisdiction if an appeal were to be taken from any action therein, and, consequently, under the practice inaugurated by the supreme court, the petition should have been presented there in the first instance.

    Moreover, the petition was not accompanied (as required by Rule XXVI, section 2, of the supreme court, [160 Cal. xlvii, 119 P. xiv]), with the points and authorities upon which the petitioner relied in support of his petition.

    Aside from these considerations, we are of the opinion that the petition should be denied upon the merits because it does not state, nor attempt to state, facts sufficient to warrant the issuance of the writ, in this, that it affirmatively appears from the petition that all of the acts and things complained of therein were done and performed by the judge against whom the writ is sought, in the exercise of the undoubted jurisdiction which the court over which he presided had to deal with and dispose of the probate of the estate pending therein.

    Done in chambers this third day of December, 1918.

    Beasly, J., pro tem., concurred. *Page 58