Huhn v. Quinn

• Decision Date: 09 December 1912
• Docket Number: 707
• Parties: HUHN v. QUINN
• Court: Wyoming Supreme Court

128 P. 514

21 Wyo. 51

HUHN v. QUINN

No. 707

Supreme Court of Wyoming

December 9, 1912

ERROR to the District Court, Johnson County; HON. CARROLL H PARMELEE, Judge.

The action was brought by Ned Quinn against William Huhn, and from a judgment in favor of the plaintiff the defendant brought error. The cause was heard and decided in open court by the District Court Commissioner, who had been called in for that purpose by the District Judge, upon the attention of said judge being called to the fact that an affidavit had been filed for a change of judge on the ground alleged in the affidavit that the party filing the same could not obtain a fair trial on account of the bias and prejudice of the presiding judge of the court. After the cause had been heard and decided and judgment rendered by the District Court Commissioner, the court, presided over by the District Judge also entered a judgment in the cause in accordance with the report and determination of the commissioner and approving and confirming in all respects the action of the commissioner. The other material facts are stated in the opinion.

Reversed.

Metz &amp Sackett, for plaintiff in error.

Under Section 5142, Compiled Statutes, 1910, the District Judge against whom an affidavit of prejudice is filed thereupon loses all jurisdiction in the cause, except to call in another District Judge to preside in the trial or further proceedings. (Baldwin v. Marygold, 2 Wis. 419; Reives v. Boyd, 7 Wis. 155; Herbert v. Beatherd, 26 Kan. 476; Smith v. State, 1 Kan. 345; People v. Hubbard, 22 Cal. 34, 37; Perkins v. McDowell, 3 Wyo. 203; Cutler v. Howard, 9 Wis. 309; Risto v. Harris, 18 Wis. 400; Bachman v. Milwaukee, 47 Wis. 435.) The Court Commissioner is not the court, nor is he the District Judge; he is an adjunct or officer of the court, without any power to render final judgment in a cause. (Mau v. Stoner, 12 Wyo. 485; State v. Ausherman, 11 Wyo. 435; State v. Finder (S. D.), 81 N.W. 959.) The District Court has no power to attach conditions to an order for a change of judge unless expressly permitted by statute. (Bentley v. Stowell, 52 N.W. 92.) This court takes judicial notice as to who are the judges of the various district courts. (Commissioners v. Shaffner, 10 Wyo. 181.) The powers of Court Commissioners are limited and cannot be extended by implication beyond the express language of the statute. Nowhere in the statute is any power granted to the commissioner to render final judgment in an action pending in the court. When the Court Commissioner presided and pretended to hear and determine this cause the District Judge was present in the county and actually holding court on the day that the commissioner heard the evidence and decided this case. This is shown by the record.

No effort was made to strike the defendant's answer from the files until after the affidavit for change of judge had been filed. If it be conceded that the court might strike the answer from the files in the absence of an affidavit for change of judge, it would be a violation of judicial discretion to refuse to permit the defendant to file an answer. The amended answer which was tendered, as well as the original answer, stated a good defense, and it was an abuse of discretion to deny the defendant the right to make any defense in the action.

Hill & Griggs, for defendant in error.

It may be conceded that had the defendant been properly in court with answer filed, and not in default, the District Judge would have had no discretion to do otherwise than to act upon the affidavit for change of judge as soon as called to his attention. The sole question here seems to be whether a defendant who is in default may disqualify the presiding judge, whose permission it is necessary to secure to permit the filing of a pleading. The defendant was not in court and had no right to file any paper in the cause without first obtaining leave of court. (Phillips Code Pl., Sec. 278; 31 Cyc. 134, 597-598; Adamson v. Bergen, 62 P. 629; Ry. Co. v. Linson, 18 P. 498; Hayward v. Goldsbury, 19 N.W. 307; Cowart v. Stanton, 30 S.E. 743; Comp. Stat., Secs. 4417-4418.) It was not an abuse of discretion to refuse the defendant leave to answer, but to have done otherwise would have been unjust to the plaintiff. (21 Ency. Pl. & Pr. 688, 689; Kent v. Upton, 3 Wyo. 43; McLaughlin v. Upton, 3 Wyo. 48; Casteel v. State, 9 Wyo. 267; Boswell v. Bliler, 9 Wyo. 277; Todd v. Peterson, 13 Wyo. 513; Cronkhite v. Bothwell, 3 Wyo. 736.) The filing of the affidavit of prejudice does not ipso facto divest the presiding judge of jurisdiction, but in addition to the filing of the affidavit it must be presented to the court in order to comply at all with the statute. Such an affidavit is a motion addressed to the court asking that another District Judge be called in to preside at the trial. In so far as the court must call in another judge, the motion is addressed to the court's discretion. If the mere filing of a motion would be sufficient, then no order or action on the part of the court would be necessary. It is evident that something more is necessary than merely filing the paper with the clerk. (20 Ency. Law, 1076; Wallace v. Lewis, 24 P. 22; Peters v. Vawter, 10 Mont. 208, 25 P. 428; Hoops v. Culbertson, 17 Iowa 305.) The affidavit or motion for change of judge was, therefore, not before the court until presented to its attention, regardless of the time when it was filed. A party cannot be permitted to submit to the jurisdiction of the court by waiving his rights to object until by some particular ruling he becomes fearful that the presiding judge is not favorable to his cause, and then for the first time raise a jurisdictional question. (State v. Clifford, 118 P. 41.) The affidavit for change not having been presented until the defendant was in default, the change might have been properly denied. (Hull v. Wallis, 2 How. Prac. Rep. 134; Vale v. Brooklyn &c. Ry. Co., 12 Civ. Proc. Rep. 102; Spalding v. A. W. Board Co., 39 N.Y.S. 203.) The statute provides that the judge against whom the affidavit of prejudice is filed shall call in another District Judge to preside in the trial. The order striking the answer was a preliminary matter arising before trial, and it was proper for the regular presiding judge to pass upon it. The trial is the determination of the issue, and until the issue is framed there can be no trial. (Lipscomb v. State, 76 Miss. 253.) The position of the Court Commissioner in hearing the cause was analogous to that of a referee. Upon his report the court rendered the final judgment; hence the question as to the power of the Court Commissioner to render final judgment is not important.

SCOTT, JUSTICE. BEARD, C. J., and POTTER, J., concur.

OPINION

SCOTT, JUSTICE.

On March 11, 1911, the defendant in error as plaintiff filed his petition in the District Court of Johnson County seeking to recover from the plaintiff in error as defendant the sum of $ 2,692.75, with interest alleged to be due on a promissory note, and on two separate accounts for money loaned to the defendant upon his request. Summons was duly issued and served on March 13th, as appears from the return thereon and filed in the office of the clerk of that court on March 15, 1911. The time for filing an answer expired on April 8, 1911. On September 25th following, the defendant, without having obtained leave so to do, filed his answer consisting of a general denial. On October 2, 1911, the defendant filed an affidavit which, omitting the formal parts, is as follows:

"William Huhn being first duly sworn on oath states, that he is the defendant in the above entitled cause. Affiant further says he believes that on account of the bias and prejudice of the presiding judge of this court he cannot obtain a fair trial. Wherefore, defendant respectfully asks that another judge of the District Courts of this state be called to preside at the trial of said cause. Further affiant sayeth not."

On October 3, 1911, or the next day after the filing of said affidavit, the plaintiff (Quinn) filed a motion to strike the answer from the files for the reason that it was filed without leave of court and not within the time required by law. On the same day this motion was presented to and sustained by the court, both parties being represented by counsel, and the answer was stricken from the files and permission was given to the defendant to make an application for permission to file an answer upon a showing by affidavit of a good and sufficient reason for not filing his answer within the time allowed by law. Thereupon and on the same day the defendant applied to the court for permission to file and tendered an amended answer and supported his application by affidavits and the plaintiff resisted said application and filed counter affidavits. Upon hearing the court denied said application, whereupon the defendant's attorney called the court's attention to the affidavit for a change of judge which had been filed the day preceding, and withdrew his application to file an amended answer and insisted on his right to have another judge called in to try the case. The court thereupon vacated so much of the order authorizing the presentation for filing of an amended answer, such application to be supported by affidavits showing good cause for not answering within the time allowed by law. The order of the court recites that the affidavit for change of judge was then for the first time presented to the court and the case was thereupon, over the defendant's objection, referred to the Hon. S. C. Langworthy, Court Commissioner in and for the District Court of the County of Johnson, who was thereupon called to hear, try and determine the cause which was set for trial in open court before said commissioner...