Bell v. Bell

• Decision Date: 17 November 1910
• Citation: 111 P. 1074,18 Idaho 636
• Parties: TILLMAN BELL, Appellant, v. M. ALBERTA BELL, Respondent
• Court: Idaho Supreme Court

111 P. 1074

18 Idaho 636

TILLMAN BELL, Appellant, v. M. ALBERTA BELL, Respondent

Supreme Court of Idaho

November 17, 1910

CHANGE OF VENUE-PREJUDICE-SHOWING.

(Syllabus by the court.)

1. Where a party moves in the district court for a change of place of trial, on the grounds of the prejudice of the judge it is not sufficient for him to state that "he has good reason to believe, and does believe, that he cannot have a fair and impartial trial," etc., but he must state the facts upon which he predicates his charge of prejudice and claims the right of a change of place of trial.

2. The prejudice of a judge contemplated by the constitution (sec 18, art. 1) is a prejudice that is directed against the party litigant, and is of such a nature and character as would render it improbable that the presiding judge could or would give the litigant a fair and impartial trial in the particular case pending.

APPEAL from the District Court of the Second Judicial District, in and for the County of Nez Perce. Hon. Edgar C. Steele, Judge.

Appeal from an order granting a change of the place of trial on the grounds of the prejudice of the judge. Reversed.

Reversed and remanded. Costs awarded to appellant. Petition for rehearing denied.

F. E Fogg, for Appellant.

Except under statutes expressly authorizing change of venue upon the filing of an affidavit by a party that he believes he cannot have a fair trial on account of the bias or prejudice of the judge, or some like provision, an affidavit of belief merely is insufficient.

An apprehension of a party that a judge is prejudiced against him is not sufficient for a change of venue. It must satisfactorily appear that prejudice in fact exists. (In re Smith, 73 Kan. 743, 85 P. 584; De Walt v. Hartzell, 7 Colo. 601, 4 P. 1201; Dakan v. Superior Court, 2 Cal.App. 52, 82 P. 1129; Toledo R. R. Co. v. Eddy, 72 Ill. 138; Western Bank of Scotland v. Tallman, 15 Wis. 92.)

Prejudice cannot be predicated on the mere fact of a former adverse decision even upon identical questions of law and fact. ( In re Dolbeer's Estate, 153 Cal. 652, 96 P. 266, 15 Ann. Cas. 207, and cases cited; State v. La Grange, 94 Iowa 60, 62 N.W. 664; Purvis v. Frink, 55 Fla. 715, 46 So. 171; Doll v. Stewart, 30 Colo. 320, 70 P. 326; People v. Williams, 24 Cal. 31.)

Daniel Needham, for Respondent.

Under the laws of this state, the motion and the showing made before the trial court were sufficient to warrant the court in granting the change of venue herein, and there was no abuse of discretion on the part of the trial court in so doing.

Prejudice of the judge is a ground for a change of venue. (Day v. Day, 12 Idaho 556, 86 P. 531, 10 Ann. Cas. 260; Gordon v. Conor, 5 Idaho 673, 51 P. 747.)

No one was better qualified to determine the question presented by the motion herein than the presiding judge himself, using his own discretion in the matter, regardless of the amount of extrinsic evidence offered. (Avila v. Meherin, 68 Cal. 478, 9 P. 428; Lynes v. Eldred, 47 Wis. 426, 2 N.W. 557; Challoner v. Boyington, 86 Wis. 217, 56 N.W. 640.)

"The granting of a change of venue in a civil case is, to a great extent, within the discretion of the trial court; and, where it does not appear that such discretion was abused, or that any substantial right of the objecting party was materially affected by the change, the supreme court will not reverse an order of the district court granting such change, although it may not appear that the district court was clearly bound to grant the change." (Waterson v. Kirkwood, 17 Kan. 9; Coffey v. Carthage, 200 Mo. 616, 98 S.W. 562; Multnomah County v. Willamette Towing Co., 49 Ore. 204, 89 P. 389.)

AILSHIE, J. Sullivan, C. J., concurs.

OPINION

AILSHIE, J.

This is an appeal from an order granting a change of venue. Prior to the time the case was called for trial, the defendant filed an affidavit as follows:

"M. Alberta Bell, being first duly sworn on oath, deposes and says that she is the defendant named in the above-entitled action, and has good reason to believe, and does believe, that she cannot have a fair and impartial trial in such action in said court on account of the prejudice of the judge thereof, the Hon. Edgar C. Steele; and the defendant makes this affidavit for the purpose of, and in support of, a motion for a change of the place of trial to some other judicial district of the state of Idaho where the cause complained of does not exist."

This affidavit was attached to a motion for a change of place of trial. The motion recited that it would be supported by the attached affidavit of defendant and "upon the files and records of this action, and also upon the findings of fact, conclusions of law and decree of the above-entitled court rendered in the case of Bell v. Bell, heretofore tried in this court, which findings, conclusions and decree are on file in the office of the clerk of the above-entitled court."

The motion came on for hearing, and the plaintiff resisted the same and filed objections thereto on the ground that the affidavit was insufficient, in that it did not recite the facts upon which the defendant relied to establish the existence of prejudice and bias on the part of the judge. The motion was granted and the cause was ordered transferred to Shoshone county for trial.

This motion for change of venue on the ground of prejudice and bias of the judge was made under the authority of Day v. Day, 12 Idaho 556, 86 P. 531, 10 Ann. Cas. 260, heretofore decided by this court, in which the court held that under the provisions of section 18, article 1, of the state constitution, a judge cannot try a case wherein it is shown that he is prejudiced against one of the parties to the action. In the Day case it was held that although the prejudice and bias of the judge is not included within the grounds enumerated in sec. 3900, Rev. Codes, as a disqualification of the judge to sit at the trial of a case, still the constitution prohibits a judge trying a case under such circumstances, and that the constitutional provision is self-executing, and must be treated as a ground additional to those enumerated in sec. 3900.

The only question with which we are now confronted is to determine whether the affidavit filed by the party seeking a change of place of trial shall set forth the facts upon which he concludes that the judge is prejudiced and biased against him, or if it is sufficient for him to state merely his conclusion, as has been done in this case, that "he has good reason to believe, and does believe, that he cannot have a fair and impartial trial in such action on account of the prejudice of the judge." If the facts constituting prejudice must be set forth in the affidavit, then the judge may determine whether or not, as a matter of law, such facts constitute legal prejudice. It would also subject the party making the affidavit to the pains and penalties of perjury in case he swears falsely. If, on the other hand, an affidavit is sufficient which states that the moving party believes that he cannot have a fair trial on account of the prejudice of the judge, then the question as to what constitutes prejudice is left to the moving party, and he is constituted the sole judge as to whether or not the judge of the court is so prejudiced against him as to prevent his having a fair trial.

In some states they seem to have a statute providing for a change of place of trial when a party to the action "makes and files" an affidavit that he cannot have a fair trial on account of the prejudice and bias of the judge, and that he bel...