Gregg

The defendant appealed from the order refusing to change the place of trial, and from the final judgment ordering a peremptory writ of mandate to be issued. The plaintiff contends that an appeal will not lie because the judgment was satisfied— that is to say, that the defendant had obeyed the peremptory mandate. For proof of the fact he relics upon the peremptory writ, the Sheriff’s return of service, and the plaintiff’s acknowledgment of satisfaction of the writ, by means of the payment of the warrants indorsed upon the writ. But neither the writ, the return, nor the plaintiff’s indorsement constitutes a portion of the judgment roll, and, therefore, cannot be considered on an appeal from the judgment. They clearly do not constitute a part of the record on the appeal from the order refusing to change the place of trial.

We are not to be understood as holding that if those papers had been presented on a motion to dismiss the appeal, or some *253 other proper proceeding, the defendant’s right of appeal would he deemed to have been waived or cut off by his obedience of the peremptory writ.

With respect to the motion for a change of the place of trial, it is sufficient to say that…

I concur in the judgment of reversal and in the opinion, except in so far as it holds that the Judge was not disqualified on the facts» stated in the affidavits. On that point I dissent.