MYRICK, J., DISSENTING. I dissent for the following reasons: This is an action for a divorce. One of the grounds on which the divorcé is sought is the alleged adultery of the defendant. In an action which had been brought against this defendant, by the person with whom the alleged acts of intercourse had occurred, the issue was as to the fact of the alleged intercourse. In that action the defendant therein had an attorney. Such attorney subsequently came to the bench and when the case at bar came on for hearing, the plaintiff herein objected to the judge sitting on the trial of this case, claiming that he was disqualified. The code on this subject is as follows: Section 170, C. C. P.: No judge shall sit or act as such in any action or proceeding, when he has been attorney or counsel for either party in the action or proceeding. Section 4, C. C. P.: The provisions of the code and proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice. The objection made to the judge may not be within the strict letter of the statute, but I think it is within its spirit. He had been an attorney for the defendant for the purpose of meeting and resisting a charge, the truth of which was involved in this action, and on the trial of which he was to preside. As well might it be said, if A. should bring an action against B. on a promissory note (or other cause), having an attorney, and that action should be dismissed before trial, and the attorney should come to the bench, and a new action be commenced for the same cause, the fact of the attorneyship would work no disqualification, because the second action was not, technically, the same action in which he had been attorney. I cannot agree to that. No. 9,576. MILLER V. VAN LOBEN SELS ET AL. In Bank. Filed January 13, 1885. CONSULS OF FOREIGN GOVERNMENTS JURISDICTION OF STATE COURTS OVER.-Consuls of foreign governments, accredited to the government of the United States, are, by the constitution and laws thereof, exempt from the jurisdiction of state courts. The exemption thus secured to them is not a personal privilege which may be waived by a failure to plead in an action in the state court; it is a privilege accorded to the office, not to the individual, and may be taken advantage of in the supreme court for the first time. APPEAL from a judgment of the superior court of Sacramento county, entered in favor of the plaintiff. The opinion states the facts. P. J. Van Loben Sels and A. Campbell, Sr., for the appellant. MCKEE, J. In this proceeding, the petitioner asks for an order to perpetually stay proceedings on a judgment entered against him in the superior court of Sacramento county, upon the ground that No. 57.-3. he was prior to, and at the time the action was commenced, and is now, consul of the Republic of Paraguay at the port of San Francisco. Of the fact of his consular appointment there is no question; and his exequatur shows that he was in the office at the commencement of the action; but he did not avail himself of the fact by the answer which he filed in the action, or otherwise on the trial of the case, and judgment was rendered against him from which he has appealed. Now, however, pending the appeal in this court, he claims the privilege of exemption from the jurisdiction of the courts of the state; and the only question is, whether the privilege now claimed was not waived by omitting to plead it in the superior court. * * A personal privilege may be waived, but exemption or immunity by virtue of official character from liability to be sued in certain courts is not a personal privilege. It is a question of jurisdiction. Now, the constitution of the United States declares that the judicial power of the United States shall extend * "to all cases affecting ambassadors, other public ministers and consuls:" Section 2, Article III, Constitution; and the ninth section of the judiciary act of 1879 invests the district courts of the United States with jurisdiction, exclusive of the courts of the several states, of all suits against consuls or vice-consuls: 1 Stats., 76-80. Therefore, causes of action against diplomatic ministers and consuls of a foreign government must be brought in the proper United States court. Such official representatives of a foreign government accredited to the government of the United States, are, by the constitution and law, exempt from the jurisdiction of state courts. The privilege thus secured to them is not a personal privilege to be waived by a failure to plead; it is a privilege accorded to the office, not to the individual. It is, say the supreme court of the United States, in Davis v. Packard, 7 Peters, 284, "the privilege of the country or government which the consul represents. This is the light in which foreign ministers are considered by the law of nations; and our constitution and law seem to put consuls on the same footing in this respect." All the questions involved in the application of the petitioner seem to have been settled by the recent decision of the supreme court of the United States in the case of Bors v. Preston, 111 U. S., 256. In that case a citizen of the state of New York, brought an action in one of the circuit courts of the United States in the state of New York, against one Bors, who was, at the commencement of the action, consul at the port of New York for Norway and Sweden. Bors made no objection to the jurisdiction of the court, but answered to the merits of the case, and went to trial; but when the trial went against him he sued out a writ of error to the supreme court, and claimed that he ought to have been impleaded in the district court of the United States, and not in the circuit court; and it was there contended, as it is here, that when a defendant answers, and goes to trial, and raises no objection or question, as to the juris * * diction of the court, until after he is defeated, and the cause has been brought into this court, it will be presumed that the court had jurisdiction. But the supreme court say: "The fact that the defendant did not in the court below plead exemption, by virtue of his official character, from suit in the circuit court of the United States, did not give the court jurisdiction. This court must from its own inspection of the record determine whether a person holding the position of consul of a foreign government is excluded from the jurisdiction of the circuit courts, and if the case is one of a class of cases which the law excludes altogether from the cognizance of the circuit court, it will reverse on the point of jurisdiction. If this were not so, it would be in the power of parties, by negligence or design, to invest those courts with a jurisdiction expressly denied to them." * * * * * * * It follows that the proceedings against the petitioner in the superior court were without jurisdiction, and that the judgment appealed from must be reversed. Judgment reversed and cause remanded, with direction to the lower court to dismiss the action. MORRISON, C. J., MYRICK, J., SHARPSTEIN, J., Ross, J., McKINSTRY, J., and THORNTON, J., concurred. No. 9,659. FARNSWORTH v. WIXOM. Department Two. Filed January 14, 1885. FINDINGS THAT THE DEEDS IN CONTROVERSY WERE DELIVERED held supported by the evidence. APPEAL from a judgment of the superior court of San Bernardino county, entered in favor of the defendant and from an order denying the plaintiff a new trial. The opinion states the facts. C. W. C. Rowell and H. M. Willis, for the appellant. THE COURT. This is an action to set aside certain deeds on the ground that they were never delivered. On this issue the evidence is conflicting, and the court below having held that the deeds were delivered, we cannot interfere with the judgment and order denying plaintiff's motion for a new trial. Judgment and order affirmed. No. 9,547. PALMER V. SNYDER ET AL. Department One. Filed January 14, 1885. MANDATE DIRECTED TO ISSUE TO BOARD OF TRUSTEES OF SAN DIEGO.-Judgment reversed and court below directed to enter a judgment that a peremptory writ of mandate issue requiring the board of trustees of the city of San Diego to act upon petitioner's claim, and either allow or reject the same. APPEAL from a judgment of the superior court of San Diego county entered in favor of the plaintiff. The opinion states the facts. E. W. Hendricks, for the appellant. Works & Titus and Conklin & Hunsaker, for the respondents. THE COURT. We find no error in the record, except in the judgment which goes too far in controlling the discretion of the board of trustees. The judgment is therefore reversed, and the court below is directed to enter a judgment that a peremptory writ of mandate issue requiring the board of trustees of the city of San Diego to act upon the petitioner's claim, and either allow or reject the same. No. 9,496. THOMPSON ET AL v. SPRAY. In Bank. Filed January 14, 1885. DISMISSAL OF ACTION BY PLAINTIFF-WHEN MAY BE HAD.-After a cross-complaint has been stricken from the files, leaving an answer which contains matters of defense only, the plaintiff may dismiss his action at any time before trial, upon judgment of costs. APPEAL from a judgment of the superior court of Amador county, entered in favor of the defendant. The opinion states the facts: Eagon & Armstrong, for the appellant. A. Caminetti, for the respondent. Ross, J. The cross-complaint having been stricken from the answer of the defendant, the latter pleading was left with matters of defense only. The plaintiffs were, therefore, at liberty to dismiss the action at any time before trial, upon payment of costs: Code of Civil Procedure, section 581. This they did the dismissal having been entered by the clerk. The purported trial of the 5th of November, 1883, was, therefore, of an action which had been. previously dismissed. Order reversed and cause remanded, with directions to the court below to set aside the judgment. MCKEE, J., MYRICK, J., MCKINSTRY, J., MORRISON, C. J., and SHARPSTEIN, J., concurred. No. 8,229. POLACK ET AL. v. GURNEE ET AL. Department One. Filed January 16, 1885. JUDGMENT AS REPORTED, ante, page 46, modified. APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the plaintiffs, and from an order denying the defendants a new trial. The facts appear in the prior opinion, reported ante, page 46. W. H. L. Barnes, for the appellants. James F. Stuart, for the respondents. THE COURT. The judgment rendered herein on the twentieth of December, 1884, should be modified in one respect. The action was not ejectment and the court below erred in giving the plaintiff judgment for the value of the use and occupation of the disputed premises for the time defendants were in possession. Ordered, that the judgment rendered herein, on the twentieth of December, 1884, be, and hereby is modified so as to read as follows: Order affirmed and cause remanded with directions to the court below to modify the judgment, by striking therefrom the amount awarded the plaintiff, as the value of the use and occupation of the property, and as so modified the judgment is affirmed. No. 9,667. ANDERSON v. BURKHART. Department Two. Filed January 16, 1885. WRIT OF MANDATE REFUSED ON ACCOUNT OF DELAY in making application. APPEAL from a judgment of the superior court of San Bernardino county, refusing an application for a writ of mandate to compel the defendant, as tax collector, to execute a deed. C. W. C. Rowell and H. M. Willis, for the appellant. Satterwhite & Curtis, for the respondent. THE COURT. The application for the writ of mandate was properly refused, on account of the delay of making it. Judgment affirmed. |