Benton v. Budd

Citations

• 120 Cal. 329
• 52 P. 851
• 1898 Cal. LEXIS 763

Syllabus

<p>Prohibition—Action foe Maintenance — Allowance Pending Appeal— Disqualification of Judge—Insufficient Appearance of Relative as Attorney—Signature to Affidavit.—In an action by a wife for maintenance, where the husband had been represented by other attorneys during the trial, and by a different attorney in taking an appeal from a decree in favor of the plaintiff, the execution of an order allowing alimony and counsel fees to the plaintiff pending the appeal, will not be restrained by prohibition on account of disqualification of the judge making the order, merely because an affidavit presented by the defendant at the hearing of the motion for the order to- which no signature of attorneys was required, was signed additionally both by the attorney who signed the notice of appeal, and also by a firm of attorneys, one of whom was a relative of the judge, there being no other appearance of either member of such firm at the hearing of the motion, or participation by either of them at any stage of the action or proceeding; and such mere signing of the names of such attorneys as copartners to such affidavit did not constitute an actual bona, -fide appearance of them as attorneys in the case; and the court was warranted in holding that they were not attorneys for the defendant.</p>