Leonard v. Ekwall

• Decision Date: 28 February 1928
• Citation: 124 Or. 351,264 P. 463
• Parties: LEONARD v. EKWALL, CIRCUIT COURT JUDGE.
• Court: Oregon Supreme Court

264 P. 463

124 Or. 351

LEONARD v. EKWALL, CIRCUIT COURT JUDGE.

Supreme Court of Oregon, En Banc.

February 28, 1928

Original proceeding in mandamus by Barge E. Leonard to require William A. Ekwall, as Presiding Judge of the Circuit Court for Multnomah County, to transfer proceedings in the matter of the guardianship of Nahum Amos King, an alleged incompetent to another department of such court than the probate department for trial. Peremptory writ denied, and proceeding dismissed.

Coshow J., dissenting.

This is an original proceeding in mandamus to require Judge William A. Ekwall, as presiding judge of the circuit court of the state of Oregon for the county of Multnomah, to transfer for trial the proceedings now pending in the circuit court for that county, department of probate (No. 7), "in the matter of the guardianship of Nahum Amos King, alleged incompetent," to a department of the circuit court of the state of Oregon for the county of Multnomah other than department No. 7, the "probate department" of said circuit court.

Ivan Henry King filed a petition in the probate department (No. 7) of said circuit court asking that Nahum Amos King be declared incompetent and that some disinterested person be appointed as guardian of his estate. A citation was duly issued requiring Nahum Amos King to appear and show cause why the petition should not be granted. Before the return day the attorney for Nahum Amos King appeared and filed a motion supported by an affidavit, under the Affidavit of Prejudice Act of 1919, §§ 45--1, 45--2, 45--4, Or. L., requesting the presiding judge of Multnomah county circuit court to transfer the hearing and further proceedings in the said guardianship matter to a department other than department No. 7, the probate department of said court.

The attorney for the petitioner filed a special appearance before the presiding judge and challenged the jurisdiction to entertain the motion, for the reason that under the Act of 1919, c. 59, Laws of 1919, mentioned as the Jurisdictional Act of 1919 (Or. L. §§ 3132 to 3140), the Legislative Assembly in transferring jurisdiction of probate matters to the circuit court expressly provided that all probate matters and procedure be automatically assigned to a certain department of the Multnomah county court designated in the act as the "department of probate"; that the act provides the judge of that department "to be known as the judge of the department of probate"; and for the reason that the 1919 Jurisdictional Act expressly provided that "the procedure and practice (in the probate department) shall be governed by the existing laws applicable to such proceedings without any change." The presiding judge declined to transfer the guardianship matter to the other department.

L. A Liljeqvist and Barge E. Leonard, both of Portland, for petitioner.

C. T Haas, of Portland, for defendant.

BEAN J. (after stating the facts as above).

The question for consideration is whether the Affidavit of Prejudice Law applies to the judge of the department of probate. The 1919 Jurisdictional Act (Laws 1919, c. 59) provided that in counties of 100,000 population or more an additional circuit judge should be elected to sit in a department to be designated by the rule of the circuit court by an appropriate number, and that this department should be known as "department of probate," but that the judge of such a department shall in addition to the duties in the act prescribed also perform the general duties of a circuit court judge. Section 3 reads thus:

"That in all judicial districts within the state of Oregon comprising one county only, of over 100,000 population, the county court of such counties, and the office of county judge therein, are hereby abolished, and the present incumbents of such offices are hereby created circuit judges of such judicial districts, and are hereby appointed to sit as circuit judges in the department provided for in the preceding section of this act, to be known as judges of the department of probate. * * *"

Section 5 of the act provides that there shall be automatically assigned to the department of probate all probate proceedings.

Section 6 of the act provides:

"Whenever the department of probate shall become congested with business, or whenever the judge of said court is absent or unable to sit, or is disqualified to hear any cause, the business of such department may be assigned to any other department of said circuit court, in the manner provided by the rules of said court."

Section 7 provides that:

"In any proceeding or cause over which, by existing laws, the county court has jurisdiction, all of which are by the provisions of this act transferred to and heard by the circuit courts of the counties affected by this act, the procedure and practice shall be governed by the existing laws applicable to such proceeding without any change, except that appeals may be taken direct to the Supreme Court from the judgments of the circuit court in all such matters. * * *"

--and one other exception not material here.

Section 8 of the act provides that the records and files of the probate department shall be kept separate and distinct from the other records of the court as far as practical.

The Affidavit of Prejudice Act of 1919 (section 45--3, Or. L.), passed at the same session as the Jurisdictional Act, provides that where a motion supported by an affidavit of prejudice is filed in any county of the state where there is a presiding judge who hears motions and demurrers and assigns cases to the other departments of the circuit court for trial, the affidavit and motion for change of judges to hear the motions and demurrers, or to try the case, may be made at any time either before or after "the assignment of the case for trial and either before a hearing upon a motion or demurrer or the commencement of trial of said cause."

And section 45--1, Or. L., after providing that no circuit judge shall try any suit, action, or proceeding when it shall be established that such judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause, reads thus:

"In such case the presiding judge shall forthwith transfer the suit or action to another department of the same court, or call in a judge from some other court, or apply to the chief justice of (the) Supreme Court to send a judge to try the case; or, if the convenience of witnesses or the ends of justice will not be interfered with by such course, and the action or suit is of such a character that a change of venue thereof may be ordered, he may send the case for trial to the most convenient court."

The original Affidavit of Prejudice Act does not in terms apply to probate matters. It also refers particularly to "the suit or action," indicating at first blush, that it was intended that a suit or action, or some similar proceeding to be tried, was to be regulated by the act.

Section 45--2, Or. L., as amended by chapter 143, Gen. Laws 1925, p. 218, provides that any party or attorney appearing in any "action, suit or proceeding in a circuit court" may establish such prejudice.

The Jurisdictional Act of 1919, § 4 (section 3135, Or. L.) plainly provides that all matters, causes, and proceedings pending in such county courts, which are abolished by the act, shall be, and they are by the act, automatically transferred and continued, thereafter to be heard and determined in said circuit court, which unquestionably refers to the department of probate.

Chapter 282, General Laws of 1927, provides that in all judicial districts within the state comprising one county only, of less than 100,000 population and more than 35,000 population, all judicial jurisdiction, power, and authority of the county judges and county courts, as distinguished from such power and jurisdiction as is exercised in the transaction of county business, shall thereafter be vested and exercised by the circuit court of the judicial district comprising such county, and all matters, causes and proceedings pending in such county courts shall be and are by the act transferred and continued, to be thereafter heard and determined in said circuit court.

Section 2 of the act provides that in such matters so transferred to be heard by the circuit court "the procedure and practice shall be governed by the existing laws applicable to such proceeding without any change, except that appeals may be taken direct to the Supreme Court. * * *"

The jurisdiction of the probate courts is now exercised by the circuit court for Clackamas county.

Chapter 282, General Laws of 1927, contains several provisions similar to those in the Jurisdictional Act of 1919, which affects Multnomah county.

As the statute (section 3136, Or. L.) automatically assigns all probate matters to the department of probate of the circuit court for Multnomah county, no duty rests upon the presiding judge in the first instance to assign probate matters to "the other departments of the circuit court for Multnomah county for trial." There is only one "department of probate" in the Multnomah district.

Section 45--3, Or. L., directing the time in which the affidavit and motion for a change of judges in a county where there is a presiding judge who assigns cases to the other departments of the circuit court, which applies to Multnomah county provides that such motion may be made at any time either before or after the assignment of the case for trial. Under the statute such motion cannot be made before the assignment of a probate matter for the reason there is no assignment of a probate proceeding to another department by the presiding judge, as that act is...