—I dissent for the following reasons: This is an action for a divorce. One of the grounds on which the divorce 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, Code Civil Proe.: 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, Code Civil Proc.: 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.
Rehearing denied.