In re Application of Hultner-Wallner

• Decision Date: 17 December 1929
• Docket Number: 5494
• Citation: 48 Idaho 507,283 P. 42
• Parties: In the Matter of the Application of CHRISTINA HULTNER-WALLNER for a Writ of Prohibition. v. THE HONORABLE ALBERT H. FEATHERSTONE, Judge of the District Court of the First Judicial District of the State of Idaho, in and for Shoshone County, Defendant CHRISTINA HULTNER-WALLNER, Plaintiff,
• Court: Idaho Supreme Court

283 P. 42

48 Idaho 507

In the Matter of the Application of CHRISTINA HULTNER-WALLNER for a Writ of Prohibition.

CHRISTINA HULTNER-WALLNER, Plaintiff, v. THE HONORABLE ALBERT H. FEATHERSTONE, Judge of the District Court of the First Judicial District of the State of Idaho, in and for Shoshone County, Defendant

No. 5494

Supreme Court of Idaho

December 17, 1929

PROHIBITION - WHEN ISSUED - JUDGES - DISQUALIFICATION - STOCKHOLDING.

1. When a judge is "disqualified from acting" within C. S sec. 6666, subd. 4, or "cannot act as such" because of his interest in case under sec. 6499, subd. 1, his participation as judge therein is in excess of or without his jurisdiction within secs. 7267, 7268 authorizing writ of prohibition.

2. Judge who was stockholder and officer of mining companies which owned some mining claims, to and from which road across plaintiff's lands was only means of ingress and egress held disqualified, under C. S., sec. 6499, subd. 1, to act as judge in suit to enjoin use of such road by others, and hence bound by sec. 6666 to grant change of venue on such showing.

3. C S., sec. 6666, requiring judge to change place of trial on showing of his disqualification to act, should be given a liberal construction, and no refined and subtle distinctions should be made to save a case from its operation.

4. No stay of proceedings being allowed by statute pending appeal under C. S., sec. 7152, subd. 2, from order denying change of venue under sec. 6666 on ground of judge's disqualification by interest in case under sec. 6499, subd. 1, such appeal affords no plain, speedy and adequate remedy precluding issuance of writ of prohibition under secs. 7267, 7268, to prevent judge from presiding as such.

5. To bar issuance of writ of prohibition under C. S., secs. 7267, 7268, because of plain, speedy and adequate remedy in ordinary course of law, the remedy by appeal must be competent to afford the relief sought.

APPLICATION for Writ of Prohibition. Writ granted.

Alternative writ of prohibition, issued, made permanent.

Therrett Towles and John L. Fitzgerald, for Plaintiff.

The writ of prohibition is the proper remedy when a district judge assumes to act in a case in which he is interested. (C. S., secs. 7267, 7268; Olden v. Paxton, 27 Idaho 597, 150 P. 40; Maxwell v. Terrell, 37 Idaho 767, 220 P. 411; Poff v. Scales, 36 Idaho 762, 213 P. 1019; Hall v. Superior Court, 198 Cal. 373, 245 P. 814; North Bloomfield G. M. Co. v. Keyser, 58 Cal. 315; Jones v. American Cent. Ins. Co., 83 Kan. 44, 109 P. 1077; State ex rel. Jones v. Gay, 65 Wash. 629, 118 P. 830; People ex rel. Brown v. District Court, 26 Colo. 226, 56 P. 1115.)

The district judge was interested in the outcome of the litigation before him, within the meaning of C. S., sec. 6499, subd. 1, to such an extent that he was disqualified to try the case. (C. S., sec. 6499, subd. 1; Hall v. Superior Court, supra; North Bloomfield G. M. Co. v. Keyser, supra; Jones v. American Cent. Ins. Co., supra; City of Los Angeles v. Dehy, 169 Cal. 234, 146 P. 662; Meyer v. City of San Diego, 121 Cal. 102, 66 Am. St. 22, 53 P. 434, 41 L. R. A. 762; Lindsay-Strathmore Irr. Dist. v. Superior Court, 182 Cal. 315, 187 P. 1056; Vallejo v. Superior Court, 199 Cal. 408, 48 A. L. R. 610, 249 P. 1084; note, 48 A. L. R., p. 617.)

The district judge should have granted the motion for change of venue under the showing made where the allegations of the affidavit in support thereof were not controverted by him or anyone else. The denial thereof will be presumed to be a denial of justice. (Callahan v. Callahan, 30 Idaho 431, 165 P. 1122; Bassford v. Earl, 162 Cal. 115, 121 P. 395-398; Keating v. Keating, 169 Cal. 754, 147 P. 974; Jones v. American Cent. Ins. Co., supra; Ex parte Owens, (Okla. Cr.) 258 P. 758.)

H. E. Worstell and James A. Wayne, for Defendant.

An order granting or refusing to grant a change of the place of trial is reviewable on appeal to this court. (C. S., sec. 7152, subd. 2.)

Where there is a plain, speedy and adequate remedy in the ordinary course of law, a writ of prohibition should never be granted except to stay proceedings pending the disposition of an appeal, and then only where there are special facts and circumstances which render the appeal ineffectual in the absence of a stay of proceedings. (Blackwell Lumber Co. v. Empire Mill Co., 29 Idaho 236, 158 P. 792; Hay v. Hay, 40 Idaho 627, 235 P. 900; Rust v. Stewart, 7 Idaho 558, 64 P. 222; Little v. Broxon, 31 Idaho 303, 170 P. 918; Olden v. Paxton, 27 Idaho 597, 150 P. 40; Maxwell v. Terrell, 37 Idaho 767, 220 P. 411.)

BUDGE, C. J. Givens, T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.

OPINION

BUDGE, C. J.

Plaintiff made application for a writ of prohibition against the Honorable Albert H. Featherstone, judge of the first judicial district, to prevent him from presiding as judge in an action commenced by plaintiff against one Emanuel Johnson and others. It appears from the showing made for the issuance of the writ that the action referred to was to enjoin the defendants therein from committing certain acts of trespass on lands owned by plaintiff, for a decree quieting title thereto, and for damages. So far as necessary to be considered here, the controversy between plaintiff and the Johnsons involves the right to the use of a road leading across the lands of plaintiff to mining claims owned by the Johnsons and others. In support of a motion to dissolve a restraining order against the Johnsons, an affidavit was filed in the case stating, among other things (and it likewise was alleged in the answer and cross-complaint filed in the action), that the road in question was the only means of ingress to and egress from defendant Johnson's property as well as a group of mining claims, some of which were owned by the Golconda Mining Company and Square Deal Mining Company. A motion for change of the place of trial of the action was filed by plaintiff upon the ground that, one of the material issues in said action being whether the road was a public road or highway, involving the right of the mining companies mentioned, their agents and employees, to use the same, plaintiff believed she could not have a fair and impartial trial in said action before Judge Featherstone by reason of his being a stockholder, president and director of the mining companies referred to. The motion for change of venue was denied, and application for the writ herein followed.

A writ of prohibition will be issued when the proceedings of a "tribunal, corporation, board or person" are not within its or his jurisdiction, and where there is not a plain, speedy and adequate remedy in the ordinary course of law. (C. S., secs. 7267, 7268; Olden v. Paxton, 27 Idaho 597, 150 P. 40.)

In testing this case by the condition first necessary to be shown in order to authorize the issuance of the writ applied for, viz., whether or not the defendant judge was within his jurisdiction in refusing to grant the motion for change of venue, the statutory provisions relating to change of venue and disqualification of a judge to act as such may be considered.

Under C. S., sec. 6666, "the court or judge must, on motion, when it appears by affidavit or other satisfactory proof, change the place of trial . . . . (2) When there is reason to believe that an impartial trial cannot be had therein . . . . (4) When from any cause the judge is disqualified from acting." A judge cannot act as such, according to C. S., sec. 6499, (1) "In an action or proceeding to which he is a party, or in which he is interested."

Where a judge is disqualified or "can not act as such,"--in the instant case if it is one "in which he is interested," within the meaning of that term as used in C. S., sec. 6499,--there can be no doubt that it would be in excess of or without his jurisdiction to participate as a judge in the case. (North Bloomfield G. M. Co. v Keyser, 58 Cal. 315, at 325.) It has been said that the interest which disqualifies a judge from trying a case is a personal or property interest, an interest in the event of the suit or in the judgment which may be rendered therein. In construing a statutory provision the same as that in C. S., sec. 6499, i. e., that a judge cannot act as such in an action or proceeding in which he is interested, the supreme court of California, in Hall v. Superior Court, 198 Cal. 373, 245 P. 814, decided that a...