Davis v. Irwin

• Decision Date: 01 July 1943
• Docket Number: 7084
• Citation: Davis v. Irwin, 65 Idaho 77, 139 P.2d 474 (Idaho 1943)
• Parties: WILLIAM F. DAVIS and LOLA E. DAVIS, his wife, Respondents, v. JOHN M. IRWIN and MARGARET E. IRWIN, his wife, Appellants
• Court: Idaho Supreme Court

139 P.2d 474

65 Idaho 77

WILLIAM F. DAVIS and LOLA E. DAVIS, his wife, Respondents, v. JOHN M. IRWIN and MARGARET E. IRWIN, his wife, Appellants

No. 7084

Supreme Court of Idaho

July 1, 1943

Appeal from District Court, Tenth Judicial District; Nez Perce County; Miles S. Johnson, Judge.

Action by William F. Davis and Lola E. Davis, his wife, against John M. Irwin and Margaret E. Irwin, his wife, for a decree of strict foreclosure.From an order denying a motion to set aside a decree for plaintiffs on the ground that the judge was without jurisdiction to try the case as a result of an affidavit charging bias or prejudice on part of judge having been filed, defendants appeal.

Order reversed and case remanded with direction.

P. E Stookey, for appellants.

The trial judge was disqualified by the filing of the affidavit of bias and prejudice and thereafter his jurisdiction was limited to the calling in of a qualified judge, the arrangement of the calendar and other minor matters provided by the statute.He was wholly without authority to act further in the action, motion or proceedings, and decree made by him is void and must be set aside.(Sub. 4, sec. 1, p 464, Ses.Laws, 1933;Stephens v. Stephens, (Ariz.)17 Ariz. 306, 152 P. 164;Washakie Livestock Loan Co. v Meigh, (Wyo.)33 P.2d 922, 922-926;State v. District Court, (Mont.)95 Mont. 400, 26 P.2d 966.).

A district judge disqualified by the provisions of sub. 4, sec 1, p. 464, S. L. 1933, acts thereafter in a case as a court of limited jurisdiction.He cannot legally act in excess of the limited powers given him by the statute and all acts and things done by him in excess of his limited power are absolutely void and of no force and effect.(Wright v Atwood,33 Idaho 455, 195 P.195;Union Cent. Life Ins. Co. v. Albrethsen, 50 Ida. 196, at 206, 294 P. 842;Furgeson v. Jones, 17 Ore. 204, 20 P. 842, 3 L.R.A. 620, 7 R.C.L. 1032.).

Leo McCarty, for respondents.

The filing of an amended complaint dates back to the filing of the original complaint, and the action is presumed to originate at the date of the filing of the original complaint.(49 C.J., p. 560, sec. 777;Woody v. Jamieson,4 Idaho 448-452.).

Where the District Court has passed upon question of law concerning pleadings in a case pending before the court, the filing of an affidavit of prejudice against the district judge will not afford a litigant relief in the matter of a change of judge.(Aker v. Coleman, et al., 60 Ida. 118, 88 P.2d 869;State exrel. Johnson v. Circuit Court for Deschutes County, (Ore.)114 Ore. 6, 233 P., p. 563;State ex rel. v. Clifford, (Wash.)65 Wash. 313, 118 P. 40;Ralston v. Stone, et al., (Ore.)113 Ore. 506, 232 P. 631.).

AILSHIE J. Holden, C.J., Givens, and Dunlap, JJ., concur.Budge, J., did not sit at the hearing or participate in the foregoing opinion.

OPINION

AILSHIE J.

--This action was commenced in the District Court by the respondents, Davis and wife, to obtain a decree of strict foreclosure on an escrow agreement to sell real estate.The pleadings prior to the amended cross-complaint are not contained in the record and are not involved in this case.

March 7, 1942, appellants filed an amended cross-complaint against the respondents and at the same time filed the statutory affidavit required by subd. 4 of sec. 1-1801, I.C.A., as amended by Laws 1933, c. 218, alleging prejudice and bias of the presiding judge, and asking for a change of judges under the provisions of the statute.The court minutes signed and approved by the judge of date of March 16th recite as follows: "The affidavit attempted to be filed disqualifying the judge is denied."The court proceeded with the trial of the case and on July 15, 1942, entered a decree in favor of the plaintiffs and against the defendants, the appellants herein.Thereafter appellants filed and served September 10th "Motion to set aside decree on ground court without jurisdiction," accompanying the same with affidavits showing proceedings that had previously been taken and alleging that the judge was without jurisdiction to try the case.The motion was denied and this appeal is prosecuted therefrom.

In 1881 the territorial legislature adopted the following statute with reference to disqualification of judges (Sec. 59, chap.VI, Code C. P. 1881), which statute has been carried forward as sec. 1-1801, I.C.A.:

"Cases in which judge disqualified.A judge can not act as such in any of the following cases;

"1.In an action or proceeding to which he is a party, or in which he is interested.

"2.When he is related to either party by consanguinity or affinity within the third degree, computed according to the rules of law.

"3.When he has been attorney or counsel for either party in the action or proceeding.But this section does not apply to the arrangement of the calendar or the regulation of the order of business, nor to the power of transferring the cause to another county."

In 1906 the question of the prejudice of a judge was raised in Day v. Day, 12 Ida. 556, 86 P. 531, 10AnnaCas. 260, and the court held that, notwithstanding the fact that the statute made no provision for change of venue, in a case where the judge was biased or prejudiced, nevertheless, under sec. 18 of art. 1 of the constitution, every litigant is entitled to trial of his case before an unprejudiced judge; that "Justice shall be administered without sale, denial, delay or prejudice."Subsequent thereto, in 1910, in the case of Bell v. Bell, 18 Ida. 636, 111 P. 1074, the court held that it was not sufficient for a party, moving for a change of venue on the constitutional ground of the prejudice of the judge, to merely say: "that 'he has good reason to believe, and does believe, that he cannot have a fair and impartial trial'[before the judge], but he must state the facts upon which he predicates his charge of prejudice," so that a court or judge may judicially pass on the sufficiency of the showing.

It was not until 1933 that the statute, as originally enacted by the territorial legislature, was change or altered; and then the only change made was the addition of subd. 4 of sec. 1-1801, I.C.A., 1933 Sess. Laws, chap. 218, p. 464; which addition is as follows: (1933 Sess. Laws, chap. 218, p. 464)

"4.When either party makes and files an affidavit as hereinafter provided, that he has reason to believe, and does believe, he cannot have a fair and impartial hearing or trial before a district judge by reason of the bias or prejudice of such judge.Such affidavit may be made by any party to an action, motion or proceeding, personally, or by his attorney or agent, and shall be filed with the Clerk of the District Court in which the same may be pending at least five (5) days before the day appointed or fixed for the hearing or trial of any such action, motion, or proceeding, (providing such party shall have had notice of the hearing of such action, motion, or proceeding for at least had notice for such length of time, he shall file such affidavit immediately upon receiving such notice).Upon the filing of the affidavit, the judge as to whom said disqualification is averred shall be without authority to act further in the action, motion, or proceeding, but the provisions of this section do not apply to the arrangement of the calendar, the regulation of the order of business, the power of transferring the action or proceeding, to some other court, nor to the power of calling in another district judge to sit and act in such action or proceeding, providing that no judge shall so arrange the calendar so as to defeat the purposes of this section.No more than one judge can be disqualified for bias or prejudice, in said action or proceeding, at the instance of the plaintiff, and no more than one at the instance of the defendant, in said action or proceeding, and this limitation shall apply however many parties or persons in interest may be plaintiffs or defendants in such action or proceeding.If there be more than one judge in any judicial district in which said affidavit is made and filed, upon the first disqualification of a judge in the cause, another judge, residing in the judicial district wherein the affidavit is made and filed, must be called in to preside in such action, motion, or proceeding; and upon the second or any subsequent disqualification of a judge in the cause, a district judge of another judicial district of the state must be called in to preside in such action, motion, or proceeding, or the action, motion, or proceeding transferred to a district judge of another judicial district of the state; when another judge has assumed jurisdiction of an action, motion, or proceeding, the Clerk of the District Court in which the same was pending, shall at once notify the parties or their attorneys of record in the same, either personally or by registered mail, of the name of the judge called in, or to whom such action, motion, or proceeding was transferred.Such second or subsequent affidavit of disqualification 'shall be filed with the Clerk of the District Court in which such action, motion or proceeding may be pending within three. (3) days after the party or his attorney of record filing such affidavit, has received as to the judge assuming jurisdiction of such action, motion, or proceeding."(Italics inserted.)

Since that time there has apparently been some diversity of opinion as to just whenthe party, who moves for a change of venue on account of prejudice of the judge, may make his motion.It seems to be generally agreed and understood, that the making and filing of the affidavit by the litigant or his attorney, stating "that he has reason to believe, and does believe, he cannot have a fair and impartial hearing or trial before a district...