Lovell v. Potts

• Decision Date: 18 July 1922
• Parties: LOVELL ET AL. v. POTTS ET AL.
• Court: Oregon Supreme Court

207 P. 1006

112 Or. 538

LOVELL ET AL. v. POTTS ET AL.

Supreme Court of Oregon

July 18, 1922

In Banc.

Appeal from Circuit Court, Clatsop County; J. U. Campbell, Judge.

Action by S.W. Lovell and another against William H. Potts and another. Judgment for plaintiffs, and defendants appeal. On motion to dismiss the appeal. Motion denied.

James L. Hope, of Astoria, for the motion.

Edward E. Gray and C. W. Robison, both of Astoria, opposed.

BROWN J.

This is a motion to dismiss appeal and affirm judgment of the lower court. For grounds of motion, it is averred "That the judgment in the above-entitled court and cause was entered on July 14, 1921; that the notice of appeal was served and filed September 7, 1921; that the undertaking on appeal was served and filed September 15 1921; that defendants' and appellants' time in which to file their transcript on appeal in the Supreme Court expired on the 20th day of November, 1921; that previous thereto, and on June 25, 1921, a motion was filed by W. H Potts, one of the defendants, supported by his affidavit alleging prejudice on the part of Hon. J. A. Eakin, judge of the circuit court for Clatsop county, state of Oregon, and that thereafter Hon. J. A. Eakige as aforesaid, invited and requested Hon. J. U. Campbell, judge of the Fifth judicial district of the state of Oregon, to hear and sit at the trial of the above-entitled cause; and that said Hon. J. U. Campbell did sit and was the judge at the trial of the above-entitled cause.

"That on October 15, 1921, an order was made, signed by J. A. Eakin, Judge, attempting to extend the time within which to file appellants' transcript on appeal in the above-entitled court from October 20, 1921, to December 1, 1921; that on November 28, 1921, based upon a motion, Hon. J. A. Eakin made a further order attempting to extend the time within which to file the transcript on appeal in the above-entitled cause from December 1, 1921, to February 1, 1922; that the transcript on appeal in the above-entitled cause was filed in the above-entitled court on January 25, 1922, containing a bill of exceptions settled and certified to by Hon. J. U. Campbell, Judge."

One of the defendants having filed an affidavit of prejudice, as prescribed by chapter 160, General Laws of 1919 (Sections 45--1 to 45--4, inclusive, Or. L.), based thereon the defendants urged that Hon. J. A. Eakin, judge of the circuit court of the state of Oregon in and for Clatsop county, was prejudiced and by reason thereof was disqualified to act in the trial. The effect of this affidavit of prejudice was to remove from Judge Eakin all jurisdiction to try or hear the cause. The record before us discloses that Judge Eakin obeyed the command of the statute, and did not "sit to hear or try" the cause, but that he called in Judge Campbell, who did "sit to hear and try" the action.

After presiding at the trial, Judge Campbell returned home. He certified to the bill of exceptions. The parties who made the affidavit of prejudice sought and obtained from the circuit court of the state of Oregon in and for Clatsop county, Hon. J. A. Eakin, judge presiding, an order of extension of time within which to file their transcript on appeal in this court. The plaintiffs now insist that the order made by Judge Eakin was void for want of jurisdiction by reason of his disqualification.

Section 45--1, Or. L., provides:

"No judge of a circuit court of the state of Oregon shall sit to hear or try any suit, action or proceeding when it shall be established, as hereinafter provided, that such judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause. 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. * * *"

From the foregoing provision of the statute, it appears that the prohibition contained in the statute disqualified Judge Eakin "to sit" in the trial of the case. It is likewise apparent from the statute that Judge Campbell was authorized to "try the case." In Sprague v. City of Astoria, 204 P. 956, 957, we wrote:

"The term 'trial' is defined thus: 'A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.' Section 113, Or. L.; Mulkey v. Day, 49 Or. 312, 314, 89 P. 957; Hillsboro Nat. Bank v. Garbarino, 82 Or. 405, 409, 161 P. 703; Warm Springs Irrigation Dist. Co. v. P. Live Stock Co., 89 Or. 19, 22, 173 P. 265."

And:

"The meaning of the word 'hearing' * * * is to be determined from the character of its use in the statute. * * * In

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