— 1 reluctantly concur in the judgment, but because of the rule set forth in Chastain v. Superior Court, 14 Cal.App.2d 97 [57 P.2d 982], Briggs v. Superior Court, 215 Cal. 336 [10 P.2d 53], and Evans v. Superior Court, 107 Cal.App. 372 [290 P 662], 1 can see no escape from the conclusion reached by the majority.
1 feel, however, that when a trial judge, sitting without a jury, decides a ease in favor of one of the parties litigant as indeed he must, the only inference to be drawn therefrom is that he believed one side and disbelieved the other. This court, or an appellate court, later reverses the judgment and the cause is remanded for a new trial. In such a situation, 1 believe that the samé trial court should not be permitted to sit in the matter since the implication is clear that once having determined in his own mind, if not publicly, that one or the other of the parties was telling the truth he might, in the absence of entirely new and different evidence, be biased and prejudiced against the opposing litigant. In my opinion it would be better in all such cases to have the retrial proceed before a judge to whom the cause was a new one. This, however, is not the law either by legislative enactment or case law.
It is true that here Judge Finley openly and frankly stated bis views with respect to the integrity of one of the parties who had been a witness before him. For this I believe he is to be commended. If he had entertained the same opinion but had remained silent, he would have been subject to no criticism even under the majority opinion and could have retried the cause without subjecting himself to a charge of bias and prejudice. So the moral appears to be, that if a trial judge does not wish to be disqualified in the event of a new trial, he should keep his opinions to himself.