In re Smith

• Citation: 54 Colo. 486,131 P. 277
• Parties: In re SMITH et al.
• Decision Date: 07 April 1913
• Court: Colorado Supreme Court

131 P. 277

54 Colo. 486

In re SMITH et al.

Supreme Court of Colorado

April 7, 1913

Error to District Court, Adams County; Charles McCall, Judge.

In the matter of contempt proceedings against George Allan Smith and others. From a judgment finding them guilty of contempt, they bring error. Reversed.

The purpose of this proceeding is to review a judgment of the district court adjudging Smith, Nordloh, and Morris guilty of contempt. The history of the proceedings which culminated in this judgment is, substantially, as follows:

An action was pending in the district court of Adams county against a former judge of that county to recover a considerable sum which, it was alleged, he had collected and retained in excess of the fees allowed by law. Smith, as attorney for the board of county commissioners of Adams county, who had instituted this action, appeared before the judge of the district in which that county is located, and stated that the commissioners thought he was biased; that they did not want to file a formal application; that the friendly relations between the bench and bar required that a matter of this kind should first be suggested to the court and the court, if possible, induced to act without a formal showing; that he (Smith), as attorney for the board, hoped he would be relieved of the necessity of making a formal showing, and that the request for another judge to try the case to which reference has been made would be granted on the oral statement, that the board felt the judge was biased that he understood that if the court required a motion to be filed, it would be necessary to set forth in detail the matters which gave rise in the minds of the commissioners to a belief of bias, which they did not want to do, unless required to make a formal showing. The judge declined to entertain the matter on suggestion, and stated that a formal showing would have to be made. Thereupon Smith, as counsel for the board of county commissioners, presented to the judge a motion for a change of venue in the case, which was verified by Nordloh and Morris, members of the board of county commissioners of Adams county. Smith had not disclosed the contents of this motion, nor the affidavit supporting it to the attorneys for the defendant, and stated that if the judge would read the same, he believed it would recall to his mind a number of matters that, possibly, he had forgotten and the court would grant the application for another judge without counsel formally filing it. The judge declined to read the application, and ordered that a copy be served on the attorneys for defendant in the action mentioned, and stated that he would hear the application on a date then fixed. On this date the judge asked respondent Smith if he had any matters to present, when Smith stated he desired to urge the application for the calling in of another judge to try the case; that he supposed his honor had read the motion to which the judge stated, in substance, that he had not, and that if Smith had anything to present, he would have to present it in a formal way. The respondent then asked the judge to give him the motion, which had been in his possession since it was first presented, and thereupon read the application to the court, in a respectful manner. When he had finished reading the motion, the court promptly denied the application, and thereupon appointed Mr. Hilliard, an attorney, to prepare and file an affidavit, setting out all the facts in relation to the application for another judge, so that the court might, upon examination, determine if the application were contemptuous. Mr. Hilliard did so, and later filed an information and affidavit against the respondents for contempt. This information and affidavit contained a copy haec verba of the motion and affidavit, setting out in detail the matters upon which the board relied in support of its application for some judge other than the judge of the district to try the case against the county judge. We do not deem it necessary to set out this motion and affidavit in detail; it being sufficient to say that, in our opinion, it...