Lindsay-Strathmore I. Dist. v. Superior Ct.

I concur, but only on the ground that Judge Wallace is disqualified by subdivision 5, section 170, of the Code of Civil Procedure. That he had or has a disqualifying personal interest is not in my judgment the fact. It is not necessary, however, to discuss the point. Suffice it to say that I think it affirmatively appears that whatever right Judge Wallace, as the owner of the lot upon which he resides, may have to the continued maintenance of the water level of the subterranean waters beneath its surface is not merely of only slight value to him, but is of no value or concern to him at all. In other words, his right, if he has any, is purely theoretical and his so-called interest is not a thing of reality. (Oakland v.Oakland Water Front Co., 118 Cal. 249, 252, [50 P. 268].) I can understand perfectly how it never occurred to Judge Wallace or to the litigants or counsel until a very recent date that his ownership of the lot gave him any personal interest in the litigation, though his ownership was well known, and the fact that it did not occur either to him or to them seems to me strong corroboration of the view that he has no interest in any real sense of the word.

The main opinion might possibly be thought to intimate that under our code section a judgment of a court rendered by a judge thereof disqualified because of interest or otherwise is void for want of jurisdiction. I am satisfied that this is not true. It is, however, not necessary to determine the point for the purposes of the present decision, and as I understand it no opinion is expressed upon it by the main opinion.

I also do not concur in the statement that under our statute a party may not estop himself from asserting the invalidity of proceedings theretofore taken before a disqualified judge. But in order that such estoppel exist, it should affirmatively appear either directly or by reasonable inference that the party attempting to assert the disqualification knew previously both of the disqualification and of his right to insist upon it, and, nevertheless, made no objection, but permitted the proceedings to go on. This does not appear in the present case. But if it had, I think the petitioner would have been estopped. It would seem to me intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.

Rehearing denied.

All the Justices concurred.