BURTON et al., Appellants, v. COVARRUBIAS, Respondent

BURTON et al., Appellants, v. COVARRUBIAS, Respondent. No. 563; April 3, 1865. Judge — When Disqualified by Relationship. — An Order Dismissing an Action, made by a judge akin to the defendant within the third degree of relationship, is void. APPEAL from First Judicial District, Santa Barbara County. S. F. Reynolds for appellants; Eugene Lies for respondent. Cited in Gage v. Downey, 79 Cal. 155, 19 Pac. 113, 21 Pac. 855, where it is held that when a case is transferred because of the disqualification of the judge, the determination of what court is the nearest to which the transfer should be made is within the jurisdiction of the judge, and the selection of a county seat most readily accessible, though not the nearest, whether or not erroneous, will not render the final judgment in the case void and open to collateral attack. [MAJORITY — SHAFTER, J.] SHAFTER, J. This appeal is from an order denying a change of venue. The correctness of the order depends upon whether the suit was pending when the motion was made— and that depends upon the validity of an order dismissing the action for want of prosecution made in 1861. The term of the court at which this order was made was held by the Hon. Joaquin Carillo, Judge, who was related to the defendant within the third degree. The order dismissing the action was null and void on the ground of the incapacity of the judge to act, as was held by us in People v. De La Guerra, 24 Cal. 73. That case was fully considered, and on a review of the whole subject we are satisfied that the decision is correct. The order appealed from is reversed, and the court below is directed to enter an order transferring the case to a district court in and for the city and county of San Francisco, or to the district court in and for the county of Monterey in pursuance of the stipulation of parties. We concur: Sawyer, J.; Rhodes, J.; Currey, 'J.; Sander-son, C. J.