Gordon v. Conor

• Decision Date: 23 December 1897
• Citation: 51 P. 747,5 Idaho 673
• Parties: GORDON v. CONOR
• Court: Idaho Supreme Court

51 P. 747

5 Idaho 673

GORDON v. CONOR

Supreme Court of Idaho

December 23, 1897

DISQUALIFIED JUDGE-CHANGE OF VENUE.-When the district judge is disqualified from acting as a judge in a case pending in his court, and a motion for a change of venue is made by either party to the action, on the ground of such disqualification it is the duty of such judge to grant a change of venue, and such duty is mandatory, and not discretionary.

PRACTICE ON MOTION FOR CHANGE OF VENUE-JUDICIAL DISCRETION.-A judge who is disqualified from acting as judge on the trial of a cause pending before the court of which he is judge, is also disqualified from acting upon any preliminary motion calling for the exercise of judicial discretion in such action.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Reversed and remanded, with instructions.

Hugh E McElroy, Frank Martin, Bamford A. Robb, D. D. Williams, and Wood & Wilson, for Appellants.

When a judge has been attorney and counsel for either party in the action or proceeding, he is disqualified to act except in the arrangement of the calendar, the regulation of the order of business, and the power of transferring the cause to another county. (Idaho Rev. Stats., sec. 3900.) When the judge is disqualified, the transfer must be made, on application therefor. This requirement is unqualified. The court has no discretion. (Idaho Rev. Stats., sec. 4126.) The disqualification of the court is conceded. Defendants first informally suggested it, and the court declined to proceed in the cause. The court made a formal declaration of the fact. The trial judge knew better than anyone else whether or not he was disqualified. (Table Mountain etc. Min. Co. v Waller's Defeat etc. Min. Co., 4 Nev. 222, 97 Am. Dec. 526; Miller v. McCord, 70 Cal. 646, 11 P. 798; Slaven v. Wheeler, 58 Tex. 23; East Rome Town Co. v. Cothran, 81 Ga. 368, 8 S.E. 737; Curtis v. Wilcox, 74 Mich. 69, 41 N.W. 863; Newcome v. Light, 58 Tex. 141, 44 Am. Rep. 604; Moses v. Julian, 45 N.H. 52, 84 Am. Dec. 123.) Where a judge is disqualified he has no authority to retain the case in his court for nonaction. The law imposes on him a single duty in regard to it, and that is to order the case to be transferred. Other than the duties imposed by the code, he has no discretion in the case. (Livermore v. Brundage, 64 Cal. 299, 30 P. 848; Krumdick v. Crump, 98 Cal. 117, 32 P. 800.) The affidavit filed by defendants tending to show the convenience of witnesses raises no issue whatever and should not have been entertained by the court. Acts of a judge, involving the exercise of judicial discretion, in a case where he is disqualified from acting, are not voidable, only, but void. (Frevert v. Swift, 19 Nev. 363, 11 P. 273.)

Wyman & Wyman and W. E. Borah, for Respondents.

As a matter of law, the statute does not disqualify the judge unless he has been the attorney for one of the parties in that action. The statute is as follows: "Sec. 3900. A judge cannot act as such in any of the following cases: . . . . 3. When he has been attorney or counsel for either party in the action or proceeding." The language is "in the action or proceeding," and it is submitted that these words admit of but one interpretation. The employment must have been in the action, and not as to some matter prior to it, and where the statute works a disqualification when the judge has been employed in the action or proceeding, it means where he has been one of the attorneys in the judicial action or judicial proceeding then pending before him. It is intended to prevent the attorney who brought the action, or who appeared for the defense, from trying the cause. If there are other matters that ought to work a disqualification than those mentioned in the statute, the argument should be addressed to the legislature. The language here used must be strained and warped out of its plain and usual significance before any warrant can be found for the construction contended for by appellants. (Cleghorn v. Cleghorn, 66 Cal. 309, 5 P. 516; Miller v. McCord, 70 Cal. 646, 11 P. 798.) Does this appeal present upon the merits any ground for the interference by this court? Have the appellants any equity? Have they suffered any loss, or damage, or injury, or deprivation, by reason of the order of the lower court? Appellants do not ask to have the cause transferred to Elmore county because of the convenience of witnesses or on account of local prejudice in this county. As to these matters they make no complaint. They merely ask that Judge Stewart do not try the cause. This is the relief prayed for in this motion. Yet the very order appealed from gave them all they ask when it calls in Judge Stockslager to try this case. If it is the purpose and intention of the law in granting change of venue in such cases to simply see that the litigants had an impartial judge, the purpose of the law in this case was fully satisfied, and the appellants are in this case court without any possible injury from any view in which you may look at the controversy. We think that the cases below, as the facts appear in this case, fully sustain our position and lay down the correct principle of law. (Page v. Carroll, 61 Cal. 216; Upton v. Upton, 94 Cal. 26, 29 P. 411.)

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

This is an appeal from an order made by the district court of the third judicial district sitting in and for Ada county denying the motion made by the plaintiffs (appellants here) for a change of venue on the ground that the district judge was disqualified from acting as judge in the cause, he having been attorney for the defendants. Said motion was supported by affidavit. The defendants opposed the motion, and filed in opposition to the motion the affidavit of John Lemp, the defendant, to the effect that the witnesses on behalf of the defendants (naming them) are numerous, and that said witnesses are business men residing at and engaged in business in Boise City, in said Ada county, and that the convenience of said witnesses required that the cause be tried in said Ada county. The motion was heard, and the district court made the following order, September 29, 1897: "This cause came on for hearing upon the affidavit of plaintiffs for a change of venue herein, and the counter-affidavit of defendants, this court being disqualified, and declining to act herein; D. D. Williams, Esq., and H. E. McElroy, Esq., appearing as counsel for the plaintiffs, and W. E. Borah, Esq., appearing as counsel for the defendants; whereupon said cause was argued before the court...