perior court for Alpine county, and thereafter the Governor of the state appointed the Hon. Clark Howard to fill the vacancy in said office of judge occurring through respondent's said resignation. It is declared that plaintiff was required to retry said case, and that the same was tried anew before the said Hon. Clark Howard between the dates of May 14th and 27th, 1905, the judgment being in favor of plaintiff. The gravamen of plaintiff's complaint is thus stated in paragraph | 17 thereof: "That said defendant, N. D. Arnot, without the consent of plaintiff, willfully, premeditatedly, and intentionally omitted, neglected, refrained, refused, and declined to decide said cause or to render any decision therein whatsoever, and totally omitted, refused, and neglected to perform his duty in the matter of deciding said cause absolutely without any good or legal reason, cause, or excuse, to the great damage, annoyance, and wrong of plaintiff," etc.

The sole question presented by the demurrer is whether or not an action for damages by an individual will lie against a judicial officer for willful and intentional omission to perform a duty within the sphere of his authority as such judicial officer. In some of the states it has been held that, "while a judicial officer will be protected against suits for damages resulting from an erroneous exercise of judgment and power, yet, when he acts corruptly, maliciously, or beyond his jurisdiction, his office is no protection." Reed v. Taylor (a Kentucky case decided in 1904) 78 S. W. 892. The following cases maintain the same doctrine and hold that the line beyond which the principle of judicial protection will not extend and cannot be applied is where, first, a person possessing only special or limited judicial power does any act beyond the scope of his authority as such judicial officer, and, secondly, where, exercising his duly constituted jurisdiction, his act is the result of malicious or corrupt motives. Revill v. Pettit, 3 Metc. (Ky.) 314; Reed v. Taylor (Ky.) supra; Stephens v. Wilson, 115 Ky. 27, 72 S. W. 336; Gault v. Wallis, 53 Ga. 675; Cope v. Ramsey, 2 Heisk. (Tenn.) 197. But the rule as it is declared in the California cases and which, we think, is sustained by the soundest reasoning, does not go to the extent to which it is carried by the authorities cited by appellant and to which we have referred.

The earliest case in this state involving the discussion of the principle of protection to judicial officers is Downer v. Lent, 6 Cal. 94, 65 Am. Dec. 489. In that case the board of pilot commissioners revoked the plaintiff's license as a pilot, and addressed to the shipmasters and consignees notice to that effect. Plaintiff brought suit against the board for damages, and, reversing the judgment of the court below, based upon its order overruling the demurrer, the court, while not extensively reasoning the proposition, states the general principle underlying the rule as fol

lows: "Whenever, from the necessity of the case, the law is obliged to trust to the sound judgment and discretion of an officer, public policy demands that he should be protected from any consequences of an erroneous judgment."

In Turpen v. Booth, 56 Cal. 65, 38 Am. Rep. 48 et seq., where members of a grand jury, which indicted the plaintiff for illegal voting, were sued for damages for "willfully, wantonly, and maliciously" returning said indictment, the Supreme Court, affirming the judgment for the defendants, held that "a grand juror is not responsible in a civil suit for his action on the grand jury, however erroneous it may be, and however malicious the motive which produced it." The statute (section 927 of the Penal Code) at the time of the filing of the opinion in that case provided, as now, that "a grand juror cannot be questioned for anything he may say or any vote he may give in the grand jury relative to a matter legally pending before the jury," etc.; but the court held that a grand juror, in the exercise of judicial or quasi-judicial duties with which he is as such official clothed, is, independent of any statute on the subject, exempt from all liability in such an action by the principles of the common law. That case is particularly valuable because it reviews the leading cases dealing with the question before us.

Pickett v. Wallace et al., 57 Cal. 555, was an action for damages against certain members of the Supreme Court for adjudging plaintiff guilty of and committing him to jail for contempt of court. The complaint charged that the order of the court adjudging plaintiff guilty of contempt was false, willful, and malicious. A demurrer to the complaint was sustained, and the judgment affirmed. The court said: "We are not aware of any principle upon which this action can be maintained. * In the recent case of Turpen v. Booth, supra, we had occasion to consider a case similar to this in principle, and in which we referred to the decision of the Supreme Court of the United States in Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646, where it was held that judges of courts of record of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when the acts are in excess of their jurisdiction, and are alleged to have been done corruptly and maliciously."

The only distinction between the cases cited and relied upon by appellant and those cited by respondent is, it will be perceived, that in the former it is held that, where the act charged is maliciously and corruptly done, an action will lie against a judicial officer, while in the latter it is held that, even if maliciously and corruptly done, the judge is immune from liability in an action for damages.

The principle upon which the rule as laid down in this state rests is fully and clearly explained in Weaver v. Devendorf, 3 Denio

(N. Y.) 120, as follows: "But I prefer to place the decision on the broad ground that no public officer is responsible in a civil suit for a judicial determination, however erroneous it may be, and however malicious the motive which produced it. Such acts, when corrupt, may be punished criminally; but the law will not allow malice and corruption to be charged in a civil suit against such an officer for what he does in the performance of a judicial duty. The rule extends to judg es, from the highest to the lowest, to jurors, and to all public officers, whatever name they may bear, in the exercise of judicial power. It of course applies only when the judge or officer had jurisdiction of the particular case, and was authorized to determine it. If he transcends the limits of this authority, he necessarily ceases, in the particular case, to act as a judge, and is responsible for all consequences. But with these limitations, the principle of irresponsibilty, so far as respects a civil remedy, is as old as the common law itself. The authorities on this' subject are almost innumerable."

The case of Stone v. Graves, 8 Mo. 148, 40 Am. Dec. 131, is in line with the California view, and contains an able and instructive treatment of the question. Yates v. Lansing, 5 Johns. (N. Y.) 282, Cunningham v. Bucklin, 8 Cow. (N. Y.) 178, 18 Am. Dec. 432, and Pratt v. Gardner, 2 Cush. (Mass.) 63, 48 Am. Dec. 652, are to the same effect. "If," says Chief Justice Shaw, in Pratt v. Gardner, supra, "an action might be brought against the judge by a party feeling himself aggrieved, the judge would be compelled to put in issue facts in which he has no interest, and the case must be tried before some other judge, who, in his turn, might be held amenable to the losing party, and so on indefinitely.

His judgment may be revised in an appellate court, and reversed or affirmed; but he himself can be liable only to an impeachment for corruption or other misconduct, if there be any"-citing cases. But it would be useless to cite further authorities, of which there are many in consonance with the rule as it is declared in this state. The California doctrine is founded upon a deeply rooted principle of the common law, and in none of the cases in which the rule is attempted to be modified or extended is there to be discovered any sound reason why the rule as it is followed in this state should be varied from.

The complaint in the case at bar, however, does not charge an affirmative act, or one of commission, involving a violation of duty on the part of respondent, but accuses him of a "willful, premeditated, and intentional omission and refusal to perform a plain duty." And therefore plaintiff contends the case here, under the pleaded facts, does not come within the rule declared in the authorities cited by the defendant. If stripped of the adjectives or epithets-"willfully," "premeditatedly," and “intentionally”—the complaint

would not contain a statement of facts (except perhaps the bare inference following the allegation of respondent's resignation without first deciding the case), which could not be applied to most any judge to whom complicated cases are submitted for decision, and which is by no means inconsistent with perfect judicial propriety. The epithets referred to are, in truth, no more than mere conclusions of the pleader, and while as against a general demurrer the complaint in this respect may stand, though upon an exceedingly frail foundation, it is certain that, if it had been attacked by the more formidable weapon (a special demurrer), it could not for a moment be upheld. In other words, the facts of the complaint would, under a special demurrer, be held to state absolutely nothing, for the epithets could then be regarded as involving no more than the mere "calling names." It will be observed that the adjectives "malicious" and "corrupt" are not employed in the complaint, and, even if they were so used, the facts should nevertheless be so pleaded as to enable the court to determine for itself whether the refusal to do a duty by a judge is or was "willful," "premeditated," and "intentional," or "malicious" or "corrupt." But we are of the opinion that the demurrer was properly sustained upon the ground that in this case, as in those where a positive wrongful or malicious or corrupt judicial act has been charged, the judge is not liable in damages in an action by a litigant or private person.

case.

We are, of course, in the dark as to the specific reason which actuated the judge's failure to decide the case before his retirement from the court over which he presided, and in which the action was tried. We are not, however, required to search for the reason, whatever it might have been, in this We are here only concerned with the facts as they appear in the complaint. We know of no rule of law in this state which requires a judge of the superior court to decide a case within any specified time after its submission to him. The Constitution, it is true (section 24 of article 6), provides that neither a judge of the superior court nor a justice of the appellate courts shall be allowed to draw or receive any monthly salary unless he shall take and subscribe an affidavit before an officer entitled to administer oaths that no cause in his court remains undecided that has been submitted for decision for the period of 90 days; but that provision of the organic law, while imposing a penalty upon the judge for a failure to decide within the time limited, does nothing more, and the effect of it is, when enforced, only to subject the judge to a personal inconvenience. It does not say that he shall forfeit the right to his office, or be subjected to any other penalty than that prescribed. We think it is clear that the matter of the time when a judge may decide a case submitted to him for decision is as much a matter of judicial dis

cretion and judgment as the matter of how he may decide it. In Graves v. Stone, supra, an action for damages, the declaration charged that the defendant, as a justice of the peace, "did corruptly and willfully refuse to enter a judgment in a suit pending before him." The court says: "The rendering a judgment is purely a judicial act. The justice must determine whether the record and proceedings before him will authorize such measure, and for this exercise of his judgment he is not responsible in a civil action." If the judge abuses his discretion in the matter of the time when he decides the case, that is, if he prolongs his decision to an unreasonable length of time, so that it may be said that his conduct therein involves an abuse of discretion, we doubt not that he may through a proper proceeding be compelled to decide, but not in a particular way. If his decision is erroneous, his judgment is subject to review and correction by an appellate court. If in either case he is influenced by malice or corruption or other bad motives, then he is liable to impeachment; but in neither case can he, upon principles of public policy, be required to answer to a private individual in the nature of an action for damages.

But the complaint alleges that the respondent stated, upon the submission of the cause for decision, that he would require the citation of no authorities, but that he would render his decision in a "short time." This allegation is intended manifestly as an indication that there was no reason why he should not have rendered his decision within a brief period of time from the submission of the case. But it is a matter of common knowledg among members of bench and bar that often a judge, after hearing the facts of a case, feels that it will require little time to apply the law thereto, and that he will have no difficulty in reaching a conclusion; but it also often happens in such cases that a judge finds, upon reviewing the record, that the facts are more complicated than they at first appeared to be, and thus finds the difficulty in deciding much greater than he had expected. It will, of course, not be doubted that a judge has a right to give a case such consideration as he feels may be necessary to reach a correct conclusion, or at least a decision satisfactory to himself, and that the delay in deciding could not of itself be the basis of a charge, even in a proceeding before an appropriate forum, that the judge was, in such delay, influenced by corrupt or other bad motives. At best it could only be a circumstance, whose force would be shattered without the support of other more persuasive circumstances.

According to the complaint, the respondent, up to the time of his resignation, had the case under advisement almost a month less than the time within which a judge of the superior court is required to decide a case as

a condition precedent, under the terms of the Constitution, to the drawing of his monthly salary. The complaint alleges that he resigned as judge for Alpine county on the 7th day of November, 1904. We may take judicial notice of the fact that the respondent was elected judge of the superior court for El Dorado county at the general election held in November, 1904, under the proclamation of the Governor of the state, to fill an unexpired term of that office, and in such case, under the law, unlike that where one is elected for the full constitutional term of that office, he was entitled to qualify for and assume the discharge of the duties of said office immediately upon the official declaration that he was so elected. And if the point were important in the determination of the main question, this could as reasonably as any other reason account for his resignation on November 7th as judge for Alpine county, thus enabling him to prepare to assume control of the new office to which he was elected. He had a right to resign, and, indeed, it was his duty to do so if he intended to qualify as judge for El Dorado county.

Undoubtedly, if he was prepared to do so, he ought to have decided the case which he held under advisement before his resignation as judge for Alpine; but there is to be found nothing in the averments of the complaint to warrant the conclusion that he had so mastered the record of the case as to have justified him in deciding it. In other words, the complaint fails to show that the judge was prepared to decide the case before or at the time of his resignation. And who was the proper person to determine that question? To sustain the complaint here would require us to hold that another judge or jury would be competent to determine whether Judge Arnot's mind had been satisfied as to how the cause should be decided. The absurdity of the proposition is too apparent to be mentioned. In the language of the opinion of the learned judge who heard this cause upon demurrer in the court below, "It was Judge Arnot's mind and not that of another judge or jury that was to be satisfied." And in the same opinion it is also well said: "It certainly cannot be left to another judge or jury to say that the proceedings were such as to even authorize the rendition of a judgment, much less that the case had been held under advisement for such length of time as to make it mandatory upon the judge to decide it within 41 days between its submission and his resignation."

The complaint fails to state any cause of action against the respondent, and the order sustaining the demurrer was proper.

For the foregoing reasons, the judgment appealed from is affirmed.

We concur: CHIPMAN, P. J.; BURNETT, J.

(7 Cal. App. 186)

SULLIVAN v. LUSK et al. (Civ. 408.) (Court of Appeal, Third District, California. Dec. 21, 1907. Rehearing Denied by Supreme Court Feb. 17, 1908.)

1. EXECUTORS AND ADMINISTRATORS-ALLOWANCE FOR ATTORNEY'S FEES EFFECT.

The court in making an allowance to an executor, administrator, or testamentary trustee for attorney's fees is not making the allowance to the attorney, nor is the allowance dependent in any way on any contract the administrator, executor, or testamentary trustee may have made with the attorney, but it is an allowance as a necessary expense of administration, and, where an attorney has any claim on the administrator, executor, or testamentary trustee by reason of any contract for compensation, he must look to the administrator, executor, or testamentary trustee as an individual. 2. INTERPLEADER-COMPLAINT SUFFICIENCY.

A complaint in an action against two persons, which alleged that plaintiff, a testamentary trustee, had been allowed a specific sum as compensation for attorneys; that he had not paid either defendant because they made conflicting claims thereto; that one defendant claimed the whole sum, and the codefendant claimed a half thereof; that the conflicting claims were made on plaintiff without any collusion or fraud on the part of paintiff, who was willing to pay it to the parties legally entitled thereto, and which demanded that defendants be called on to interplead-stated a cause of action against both defendants under Code Civ. Proc. § 386, providing that, when conflicting claims are made on a person, the latter may bring an action against the conflicting claimants to compel them to interplead.

3. VENUE-CHANGE OF PLACE OF TRIAL.

Where any of the defendants in a case within Code Civ. Proc. § 395, providing that actions must be tried in the county in which the defendants or some of them reside, etc., reside in the county in which the suit is brought, a motion to change the place of trial to a place in which others of the defendants reside will not be granted, unless all of defendants join in the motion, or good reason is shown why they have not so joined.

Appeal from Superior Court, Butte County; John C. Gray, Judge.

Action by Daniel Sullivan against F. C. Lusk and another. From an order refusing to change the place of trial on the motion of defendant Charles F. Hanlon, he appeals. Affirmed.

F. C. Lusk and C. F. Hanlon (R. M. Royce, of counsel), for appellant. Joe D. Sproul, for respondent.

CHIPMAN, P. J. Motion to change the place of trial. The complaint sets forth: That plaintiff was a trustee under the will of Lucy C. Goodspeed of certain real property situated in Butte county, devised to plaintiff in trust for the benefit of the minor children of the said Lucy C. Goodspeed, deceased; that said real estate was distributed to plaintiff to so hold in trust by the superior court of the city and county of San Francisco in December, 1902; that said trust terminated when said children became of age, and that they have become of age; that in the matter of said trust plaintiff was represented by defendants as his attorneys; that plaintiff has filed and caused

to be settled his final account as such trustee and by order of the court "this plaintiff was allowed the sum of $2,595 as compensation for attorneys employed by him in the matter of said trust"; that he has not paid the said sum to either of said defendants or to any other person, and that defendants make conflicting claims thereto, defendant Hanlon claiming the whole of said sum and defendant Lusk claiming one-half of said sum; that plaintiff has tendered said Hanlon $1,297.50, being one-half of said sum, but that he refused to receive the same, and demands the whole thereof; that "said conflicting claims are made on this plaintiff for the payment of said sum of money without any collusion or fraud upon the part of this plaintiff"; and that "plaintiff has said sum in his possession and is willing and anxious to pay it to the parties legally entitled thereto." Wherefore defendants are called upon to interplead and litigate their several claims, etc. Defendant Hanlon filed a general demurrer to the complaint, and also demurred on the ground that there was a misjoinder of parties defendant, in this: that no cause of action is stated against either of the defendants. Defendant Hanlon moved the court for an order transferring the cause to the city and county of San Francisco, on the ground that at the commencement of the action it was the place of his residence, and upon the further ground that defendant Lusk is not a necessary or proper party to the action, and should not be jcined as defendant with defendant Hanlon. It appeared by the affidavits, used at the hearing of the motion, that defendant Hanlon was at the commencement of the action a resident of San Francisco, and that defendant Lusk was a resident of Butte county, where the action was commenced. The court denied the motion, and defendant Hanlon appeals from the order.

* *

The action is brought under section 386 of the Code of Civil Procedure, which reads, in part, as follows: And whenever conflicting claims are or may be made on a person for or relating to personal property, or the performance of an obligation, or any portion thereof, such person may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. The order of substitution may be made, and the action of interpleader may be maintained, and applicant or plaintiff discharged from liability to all or any of the conflicting claimants, although their titles or claims have not a common origin, or are not identical, but are adverse to and independent of one another."

The position of appellant is thus stated: "The defendant Hanlon, according to the complaint, demands from Sullivan as pay for the work which Sullivan hired him to perform the sum of $2,595 and defendant Lusk demands of Sullivan for the work he, Lusk, performed the sum of $1,297.50. These two independent claims aggregate $3,892.50 and Sulliyan is

seeking to escape all liability by paying $2,595, instead of paying $3,892.50." Appellant, on this assumption, proceeds to argue that plaintiff, if he had judgment in his favor, would plead it against all subsequent demands of appellant; that the conflicting claims are simple claims on contract in which Hanlon and Lusk have no joint interest, Hanlon claiming $2,595 and Lusk claiming $1,297.50, and therefore Lusk had no interest in Hanlon's claim. It is hence argued that there is no cause of action stated against Lusk, and it follows that the place of trial should have been changed to Hanlon's place of residence. Appellant misconceives the obvious purpose of the action and the nature of the fund in litigation. The allowance made to plaintiff was as trustee to compensate the defendants, who were his attorneys, and its amount rested wholly in the discretion of the judge who was settling the trust estate. There was no contractual liability, express or implied, such as ordinarily exists between attorney and client where professional services are performed for the latter by the former. It is settled law in this state that the court in making an allowance to an executor or administrator for attorney's fees (and we think the rule is the same as to a trustee of such an estate as we have here) is not making it to the attorney, nor is it dependent in any way upon any contract the administrator or executor may make with his attorney, but it is an allowance as a necessary expense of administration.

If the attorney

has any claim upon the administrator or executor by reason of any contract for compensation, he must look to the administrator or executor as an individual, and not in his representative capacity; and an action to enforce such a contract would not lie against him in the latter capacity. Briggs v. Breen, 123 Cal. 657, 56 Pac. 633, 886; McKee v. Hunt, 142 Cal. 526, 77 Pac. 1103; Estate of Kruger, 143 Cal. 141, 76 Pac. 891. It is an erroneous assumption on appellant's part that an adjudication by the court as to the amount of the fund in question to which each of the interpleaders is entitled could be pleaded in bar of any right of action appellant may have on any contract made by him with plaintiff as an individual. The subject-matter here relates exclusively to the particular fund allowed plaintiff in the settlement of his account with the beneficiaries of the trust. This and no other is involved in the action. See cases, supra. We think the complaint states a cause of action against both defendants under section 386 of the Code of Civil Procedure.

The motion for a change of venue was made under section 393 of the Code of Civil Procedure, and it is well settled that where any of the defendants, in a case coming under that section, reside in the county in which the suit is brought, a motion to change the place of trial to a place in which others of the defendants reside will not be granted, unless all of the defendants join in the motion or good reason is shown why they have not so

joined. McKenzie v. Barling, 101 Cal. 459, 36 Pac. 8; Quint v. Dimond, 135 Cal. 572, 67 Pac. 1034. Here the complaint states a cause of action against both defendants, and, this being so, Lusk has a right to have the action tried in the county of his residence. Appellant admitted at the argument, and seems to do so by his brief, that the trial must be had in Butte county, unless it appears from the complaint that no cause of action is stated against Lusk, or that he is merely a nominal party. But we think the cause of action is as much against the one defendant as against the other, and the trial judge was correct in his conclusion. The order is affirmed.

We concur: HART, J.; BURNETT, J.

(7 Cal. App. 186) (Sac. 1,532.) Feb. 17, 1908.)

SULLIVAN v. LUSK et al. (Supreme Court of California. VENUE-CHANGE OF PLACE OF TRIAL.

Where the complaint in an action against two defendants, one of whom resided in the county in which the suit was brought, stated the same cause of action, if any, against both, the nonresident defendant could not on his own motion obtain a change of place of trial to the county of his residence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Venue, § 62.]

In Bank. Appeal from Superior Court, Butte County; John C. Gray, Judge.

Action by Daniel Sullivan against F. C. Lusk and another. From an order denying the motion of defendant Charles F. Hanlon Afto change the place of trial, he appeals. firmed.

F. C. Lusk and C. F. Hanlon (R. M. Royce, of counsel), for appellant. Joe D. Sproul, for respondent.

PER CURIAM. The application for a hearing in this court, after decision in the District Court of Appeal for the Third District, is denied. It is immaterial upon this appeal whether or not the complaint states any cause of action, and we express no opinion as to the views of the District Court of Appeal thereon. It is obvious that, if it states a cause of action against the appellant Hanlon, it equally states one against the other defendant Lusk, and, this being so, defendant Hanlon cannot, unless Lusk joins in the motion, have the place of trial changed from the county in which said Lusk resides.