Linsk

Plaintiff wife brought an action for divorce against defendant husband, who filed a cross-complaint, also seeking a divorce. The original proceedings ended in a mistrial due to the disability of the trial judge who heard the evidence.

Subsequently plaintiff’s attorney stipulated over his client’s express objection that the case could be decided by a different judge entirely on the basis of the record previously made. Counsel for both parties were aware of plaintiff’s objections, as was the presiding judge, who nevertheless accepted the stipulation and assigned the case to a trial court. There the trial judge, not shown by the record to be advised of the adamant position of plaintiff, examined only the record at the prior trial and, without hearing testimony, entered judgment against plaintiff on her complaint and in favor of defendant on his cross-complaint. Plaintiff appeals therefrom, maintaining that the court exceeded its jurisdiction in proceeding to determine the matter on the record of the prior trial pursuant to a stipulation made by plaintiff’s attorney over her express objection. We conclude that this contention is meritorious and the judgment must be…