I concur in the judgment and generally in the foregoing opinion, but an unwilling to assent to the view intimated therein that Judge Ogden could have called in another judge of his own selection without the consent of the parties. The course that should have been pursued was that originally proposed by Judge Ogden, viz., to send the cause to Judge Green's department, not because the case was governed by the express provisions of subdivision 4 of section 170 of the Code of Civil Procedure, as amended in 1897 (Stats. 1897, p. 287), for it is at least doubtful if that amendment applies except in cases of actual bias on the part of the judge; but the transfer should have been made to Judge Green's department, because it has been held here that in a county where there are several departments of the suprior court the disqualification of the judge to whose department a particular cause has been originally assigned is no ground for a change of venue if there is another judge of the same court before whom it may be tried. (Oakland v. Oakland Water Front Co.,118 Cal. 251.) The only ground upon which that decision can be supported is that it is the duty of the superior court in the case supposed to reassign the cause to a department whose judge is not disqualified, for otherwise there could be no trial at all, or else the parties would have to await the assignment of a judge by the governor, or submit to the selection of a judge by a judge himself disqualified and possibly deeply interested in the result of the trial. I do not think the law intends that a litigant *Page 105 should ever be placed in such a dilemma, and, according to our repeated decisions, he cannot be so placed in a county where there is but one judge of the superior court. There, if the judge is disqualified for interest, consanguinity, or other cause, either party may move for a change of venue, and the motion must be granted without hesitation or delay. (Krumdick v. Crump,98 Cal. 117; Anaheim Water Co. v. Jurupa Co., 128 Cal. 568.) Nor can the right to a change of venue be defeated by the act of the disqualified judge in calling in another judge to hear the motion. This was expressly decided in Remy v. Olds (Cal., Nov. 4, 1895), 42 Pac. Rep. 239, but since a rehearing was granted in that case and the controversy settled by the parties it cannot be cited as authority. In a more recent case, however, the principle upon which Remy v. Olds, supra, was decided has been affirmed in emphatic terms: "The reason why the judge of the county cannot call another to try the case is stated in Krumdick v. Crump,supra. It is that the judge shall neither try his own case nor select his judge." (Santa Cruz Bank v. Taylor, 125 Cal. 249.) This is the controlling principle, and it applies in all counties alike whether there be one department of the superior court or more than one department. No litigant can be compelled to accept a judge selected by a judge himself disqualified. He can always defeat such an attempt by moving, and insisting upon his motion, for a change of venue.
But it does not follow from this that a disqualified judge cannot, with the express consent of the parties, call in a judge from another county to try the cause, instead of transferring it to another county for trial. In case of a change of venue it is made the duty of the judge to transfer the cause to the county agreed upon by the parties, and there is no reason why they should not be allowed to agree that, instead of changing the place of trial, the judge by whom they are both willing the cause may be decided should come to the county where it is pending and conduct the trial there. The convenience of witnesses and the saving of expense would often be controlling reasons for such a course.
But the contention on the part of petitioners is that the plain words of the statute take from the disqualified judge *Page 106 the power to invite another judge to preside in his place, even with the express consent of the litigants. To do so, they contend, would be to "sit or act" in the case in a matter not included in the exceptions enumerated in section 170 of the Code of Civil Procedure. I do not construe the last clause of that section as an enumeration of exceptions to the rule against sitting or acting in a cause, but rather as a legislative declaration that the words "sit" and "act" are not used in a sense which would embrace the arrangement of the calender, the regulation of the order of business, or the transferring of the action or proceeding to another court. This clause means nothing more than if it had said: But this inhibition shall not be construed as applying to the arrangement of the calender, etc., and this is very different from an exception which strengthens the rule. It gives a sense to the words "sit" or "act" which excludes an order transferring the cause and all similar orders; and an invitation to a judge agreed upon by the parties is precisely analogous to an order transferring the cause to a county agreed upon. It is not sitting or acting in the cause in the sense of the statute.
In this case I consider that Judge Hart was invited by consent of the parties, and that at all events it was too late to object to his acting in the cause after the parties had voluntarily argued and submitted the demurrer to his decision. When another judge has been invited to try a cause by a disqualified judge the remedy for a dissatisfied litigant is to move for a change of venue. If he waives that remedy, if he consents either expressly or impliedly to the selection of the judge so invited, he cannot claim that his trial of the cause is an excess of jurisdiction. *Page 107