Day v. Day

• Citation: 12 Idaho 556,86 P. 531
• Parties: AGNES LORETTA DAY, Appellant, v. EUGENE RUFUS DAY, Respondent
• Decision Date: 07 July 1906
• Court: United States State Supreme Court of Idaho

86 P. 531

12 Idaho 556

AGNES LORETTA DAY, Appellant, v. EUGENE RUFUS DAY, Respondent

Supreme Court of Idaho

July 7, 1906

CHANGE OF VENUE-BIAS AND PREJUDICE OF JUDGE-CONSTITUTIONAL LAW-SELF-EXECUTING PROVISIONS OF CONSTITUTION-DISQUALIFICATION OF JUDGE-ALLOWANCE OF ATTORNEY'S FEES.

1. Under the provisions of section 18, article 1 of the constitution of Idaho, as well as by the unwritten dictates of natural justice, the courts of this state are commanded to administer justice without prejudice.

2. The provisions of said section are self-executing, and the legislature by failing to provide, by proper legislation that the prejudice of the judge is a cause for a change of the place of trial, cannot nullify the provisions of said section and thus compel the trial of a case before a prejudiced judge.

3. Section 3900, Revised Statutes, was enacted before the adoption of our constitution, and provides three grounds for a change of venue, but does not make the prejudice of the judge one of said grounds.

4. Section 4125, Revised Statutes, provides among other grounds that a change in the place of trial may be had when from any cause the judge is disqualified from acting and, although enacted prior to the adoption of our constitution, is broad enough in its terms to include the disqualification on the ground of prejudice of the judge; and the constitution makes prejudice a ground of disqualification.

5. Neither the constitution of California nor Montana commands the courts to administer justice without "prejudice" as does the constitution of Idaho.

6. Public confidence in our judicial system and courts of justice demands that causes be tried by unprejudiced and unbiased judges.

7. Where it appears that the defendant has means with which to pay, and his wife is without means to properly prosecute her suit for a divorce, the court will allow her suit money and counsel fees.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. Ralph T. Morgan, Judge.

Appeal from an order denying a change of venue on the ground of prejudice of the judge. Reversed.

Reversed and remanded, with instruction. Costs awarded to appellant.

F. C Robertson, Henry P. Knight and John P. Gray, for Appellant.

The declaration of rights in our constitution is self-acting, self-executing and requires no legislative provision for its enforcement, and cannot be annulled, abridged or modified by any legislative or judicial act.

The rule formerly established by the supreme court of California produced such a great injustice in that state that at a subsequent date the legislature enacted a statute disqualifying a judge on account of bias and prejudice. (Code Civ. Proc., sec. 170, as amended in 1897.)

In the cases which have been presented to the supreme court of California involving this question since that date, it has been held that bias and prejudice of the judge was a good ground for changing the venue of the action. (People v. Compton, 123 Cal. 403, 56 P. 44; Morehouse v. Morehouse, 136 Cal. 332, 68 P. 977.)

It is a primary idea in the administration of justice that a judge must be free from bias, prejudice and partiality. ( Stockwell v. Township Bd. of White Lake, 22 Mich. 341.)

This court has held that a new trial may be granted in a case not provided for in the statutes where a constitutional right of the defendant has been violated. (State v. Bland, 9 Idaho 796, 76 P. 780; State v. Wroth, 15 Wash. 621, 47 P. 106; State ex rel. Partridge & Co. v. Superior Court, 40 Wash. 443, 111 Am. St. Rep. 915, 82 P. 875, 2 L. R. A., N. S., 568.)

While it is better that facts as to the alleged prejudice should be presented, it does not appear to be absolutely necessary a mere suggestion or imputation usually being sufficient. (4 Ency. of Pl. & Pr. 408.)

C. W. Beale, W. W. Woods, John II. Wourms and W. E. Borah, for Respondent.

The framers of our constitution contented themselves with retaining in force the territorial laws, and, in addition thereto, with vesting in the legislature the power to provide by law the methods of procedure in all the courts below the supreme court. Hence, we are not to look to the constitution, but to the acts of the legislature, for authority and guidance upon the matter of the change of venue. ( Stanley v. United States, 71 Okla. 336, 33 P. 1025.)

Section 18, article 1 of the constitution has nothing to do with the question of change of venue, makes no provision for the practice governing such proceeding, does not in any manner prescribe any disqualification of a judge or anybody else, in no degree limits or enlarges the jurisdiction of the courts, but, as stated by the supreme court of Ohio, together with the other sections that make up the Bill of Declaration of Rights amounts merely to an "enunciation of axiomatic truths and principles."

Where the grounds which will operate to disqualify a judge are expressly set out in the statutes, such provisions are exclusive, and no other causes than those set forth will work a disqualification. (Patterson v. Police Court, 123 Cal. 453, 56 P. 105; In re Jones, 103 Cal. 397, 37 P. 385; People v. Williams, 24 Cal. 31; People v. Mahoney, 18 Cal. 186; People v. Shuler, 28 Cal. 495; Hibberd v. Smith, 39 Cal. 148; Bulwer Con. Min. Co. v. Standard Con. Min. Co., 83 Cal. 613, 23 P. 1109, 1111; Taylor v. Williams, 26 Tex. 585.)

The court has no authority to change the venue of civil cases except as provided by statute. (Commercial Nat. Bank v. Davidson, 18 Or. 57, 22 P. 517; People v. McGarvey, 56 Cal. 327; Heath v. Mathiew, 19 Wis. 127; Shannon v. Smith, 31 Mich. 450, 451; Zelle v. McHenry, 51 Iowa 572, 575, 2 N.W. 264.)

Where there is a counter-showing of an equal number of affidavits to those filed by the defense to the effect that in their opinion the defendant can have a fair and impartial trial, an order of the district judge denying such application for a change of venue will not be reversed on appeal. (State v. Rooke, 10 Idaho 388, 79 P. 82.)

The judge had the jurisdiction to decide the question of his own bias and to try the cause if he found the charge unsustained. (Talbot v. Pirkey, 139 Cal. 326, 73 P. 858; Allen v. Reilly, 15 Nev. 452-455; Hungerford v. Cushing, 2 Wis. (397), 292; State v. Morrison, 67 Kan. 144, 72 P. 554.)

SULLIVAN, J. Ailshie, J., concurs, STOCKSLAGER, C. J., Concurring in Part and Dissenting in Part.

OPINION

SULLIVAN, J.

This action was commenced on the ninth day of December, 1905, by the appellant against the respondent, to obtain a divorce, on the ground of extreme cruelty, and a settlement of their property rights. Thereafter the respondent answered and filed his cross-complaint, demanding a divorce from the appellant on the same ground. The appellant answered the cross-complaint, thus putting in issue the material allegations of both the complaint and cross-complaint. Thereafter the appellant made her motion for a change of the place of trial, supported by her own affidavit and the affidavits of three of her attorneys. Said application was made upon the ground that she could not have a fair and impartial trial before the presiding judge on account of his prejudice in the matter. The answer and the cross-complaint cover about eighty pages of the printed transcript; and the answer to the cross-complaint occupies about fifty-seven pages of the transcript; and the charges, crimination and recrimination contained in said cross-complaint and answer thereto show, indeed, a most deplorable state of affairs. In the cross-complaint, among many other things, the attorneys for respondent are charged with entering into a conspiracy for the purpose of extorting money from the respondent; and in the answer to the cross-complaint one of the attorneys for the respondent, and various other persons and detectives and persons of low character, are charged with entering into a conspiracy for the purpose of blackmailing appellant's reputation, depriving her of her rights and defrauding her of her property.

The application for the change in the place of trial was based upon the pleadings and the affidavits of appellant and her counsel, and the latter show the bias and prejudice of the presiding judge. In reply to said application the respondent filed some sixty-five affidavits, in number, of citizens of Shoshone county, showing the high regard in which they held the presiding judge, and swearing that, in their opinion, he was no biased and prejudiced in the case. Before the hearing on said motion, counsel for appellant moved to strike out fifty-five of said affidavits for the reason that they were incompetent, irrelevant and immaterial, and filed only for the purpose of encumbering the record and not answering any of the charges set forth in the application for the change of venue. Said motion was denied. Thereafter on the hearing counsel for the appellant offered to read the affidavits in support of the motion for a change of venue to the court, and insisted on the right to argue said motion in the presentation of said application, which offer was denied by the court. Counsel for appellant thereupon tendered to the court for cross-examination the persons who had made the affidavits for the appellant, upon the application for change of venue, and the court refused to permit such cross-examination. Said motion was thereafter taken under advisement and a written opinion was filed by the judge denying the same. The principal ground upon which the court based its opinion is that the prejudice of a judge is not a cause, under our statute, for change of venue. He also in his written opinion states that he could give plaintiff and her counsel a fair and impartial hearing in the case. The several...