Opinion
No. 34770.
July 2, 1959.
JURY — RIGHT TO JURY TRIAL — CONTEMPT PROCEEDINGS. In a contempt proceeding brought under RCW 7.20 to enforce a temporary restraining order, it was not error to deny a request by the contemnors for a jury trial.
JUDGES — DISQUALIFICATION TO ACT — AFFIDAVIT OF PREJUDICE. In a contempt proceeding brought under RCW 7.20 to enforce a temporary restraining order, it was not error for the trial judge to refuse to disqualify himself after the contemnors had filed an affidavit of prejudice, where, prior to the time that the affidavit was filed, the return on the order to show cause was argued and submitted to the court for a decision, and the restraining order was continued; and it further appeared that the contemnors had previously filed an affidavit of prejudice against another judge. (RCW 4.12.050)
EVIDENCE — DOCUMENTARY EVIDENCE — PRIVATE WRITINGS — ABSENCE OF PERSON MAKING MAP. In a contempt proceeding brought under RCW 7.20 to enforce a temporary restraining order, the trial court properly excluded from evidence a map prepared by a surveyor who had been hired by the contemnors, where the surveyor did not identify or qualify the map, and was not present in court to be available for cross-examination.
APPEAL AND ERROR — BRIEFS — POINTS AND ARGUMENTS. An assignment of error will be disregarded, where an appellant's brief on appeal contains no argument in support thereof. (Rule on Appeal 42 (1))
SAME — REQUISITES FOR TRANSFER OF CAUSE — NOTICE OF APPEAL FROM APPEALABLE ORDERS. A trial court did not err in hearing a contempt proceeding brought under RCW 7.20 to enforce a temporary restraining order after the contemnors had filed notices of appeal from orders of the court rejecting an affidavit of prejudice, striking part of their answer, denying a jury trial, and setting the cause for hearing, since none of these orders are appealable under Rule on Appeal 14, and, hence, there being no valid appeal pending, the trial court did not lose jurisdiction to proceed with the cause.
See Ann. 27 A.L.R. 423, 35 A.L.R. 461, 97 A.L.R. 1354, 106 A.L.R. 375, 120 A.L.R. 349, 124 A.L.R. 777, 127 A.L.R. 889; Am.Jur. Jury §§ 38-39.
Appeal from an order of the Superior Court for San Juan county, No. 1838, Dawson, J., entered August 19, 1958, adjudging certain defendants to be in contempt of court. Affirmed.
Peder M. Hage and Eleanor J. Hage, pro se. Elmon A. Geneste and Willing Post, for respondents.
This is an appeal by the defendants from an order of the superior court for San Juan county, signed and filed August 19, 1958, which adjudged them in contempt of court for violating its temporary restraining order of December 21, 1954.
[1] The appellants contend the trial court erred in denying them a jury trial in this proceeding, which was on a show cause order. This proceeding was brought under RCW 7.20 to enforce the restraining order in question. In Keller v. Keller, 52 Wn.2d 84, 323 P.2d 231, we said: "Under RCW 7.20, the contemnor is not entitled to a jury trial. [Citing cases.]" It was not error to deny appellants' request for one.
The appellants contend the trial judge erred by refusing to disqualify himself after appellants had filed an affidavit of prejudice. The trial judge ruled on the affidavit as follows:
"IT IS ORDERED that the Affidavit of Prejudice as to Judge Hobart S. Dawson be rejected because the statutes only allow a party to file an Affidavit of Prejudice once as to one Judge, and such right has been exercised as to Judge Kale, and for the further reason that the statute requires the filing of such an affidavit prior to the submission of any matter involving discretion on the part of the Court and it appears from the files of this cause and the Minutes of the Superior Court that on December 21st, 1954, upon the Return on the Order to Show Cause the same was argued, submitted to the Court for decision, and the existing Restraining Order continued, and that at the February 15, 1955, Term of Court the Defendants argued their Demurrer to Plaintiff's Complaint and the Court overruled said demurrer, and by reason of said facts the Affidavit of Prejudice was not timely filed, and of no avail."
[2] This is in accord with RCW 4.12.050. It was not error to so rule.
[3] The appellants contend the trial court erred in refusing to admit in evidence a certain map prepared by a surveyor whom they had hired. Since the surveyor did not identify or qualify it and was not even present in court so as to be available for cross-examination, it was properly excluded. See Montgomery v. Hyatt, 46 Wn.2d 468, 282 P.2d 277; Owens v. Seattle, 49 Wn.2d 187, 299 P.2d 560.
[4] The appellants assign error to the trial court's recognizing the intervenors in the instant proceeding. Since their brief on appeal contains no argument in support of this assignment of error, we must disregard it. Bruce v. Bruce, 48 Wn.2d 229, 292 P.2d 1060; Rule on Appeal 42 (1) (f), 34A Wn.2d 44, as amended, effective January 2, 1953.
[5] The appellants contend the trial court erred in hearing this matter after they had filed notices of appeal in each instance from the court's orders rejecting appellants' affidavit of prejudice, striking part of appellants' answer, denying appellants a jury trial, and setting the cause for hearing. None of these are appealable orders under Rule on Appeal 14, 34A Wn. 2d 20. No valid appeal was pending as a result of these notices; hence, the trial court did not lose jurisdiction to proceed with the cause.
The order adjudging the appellants in contempt of court is affirmed.
WEAVER, C.J., HILL, FOSTER and HUNTER, JJ., concur.