Price v. Featherstone

• Decision Date: 07 November 1942
• Docket Number: 7053
• Citation: Price v. Featherstone, 64 Idaho 312, 130 P.2d 853 (Idaho 1942)
• Parties: RAYMOND FRANK PRICE, Plaintiff, v. HONORABLE ALBERT H. FEATHERSTONE, Judge of the District Court of the First Judicial District of the State of Idaho, Defendant
• Court: Idaho Supreme Court

130 P.2d 853

64 Idaho 312

RAYMOND FRANK PRICE, Plaintiff, v. HONORABLE ALBERT H. FEATHERSTONE, Judge of the District Court of the First Judicial District of the State of Idaho, Defendant

No. 7053

Supreme Court of Idaho

November 7, 1942

JUDGES DISQUALIFICATION OF.

1.The filing of an affidavit charging bias or prejudice of the judge is sufficient to disqualify him without any hearing as to whether the affidavit is true and regardless of whether he is prejudiced as a matter of fact and the filing deprives him of all jurisdiction except to make a proper order of removal of the cause or calling in another judge as required by statute.(I.C.A., sec. 1-1801, as amended bySess. Laws 1933, chap. 218.)

2.The truth of the filed affidavit charging bias or prejudice on the part of the judge is not what disqualifies a judge but the affidavit itself.(I.C.A., sec. 1-1801, as amended bySess. Laws, 1933, chap. 218.)

3.Under statute authorizing a change of judge upon filing affidavit charging bias or prejudice, an application for such change made upon application for modification of a divorce decree was timely, since the statute is applicable to any subsequent proceeding in the original case.(I.C.A., sec 1-1801, as amended bySess. Laws, 1933, chap. 218.)

4.Where affidavit charging bias or prejudice on part of judge was filed at time of hearing on application for modification of divorce decree, judge's subsequent order directing former husband to pay attorney's fees and expense money was void.(I.C.A., sec. 1-1801, as amended bySess. Laws 1933, chap. 218.)

Original proceeding for writ of review.Order of lower court reversed and set aside and cause remanded with instructions.

Cause remanded with instructions.No costs allowed.

Frank Griffin for plaintiff.

Petitioner having filed his affidavit of prejudice and bias in said proceedings more than five (5) days prior to hearing and before having submitted any question of law or of fact to said judge in these proceedings, the said judge was disqualified and was without authority or jurisdiction to proceed further in the proceedings.(Waters v. Barcaley,64 P.2d 1079(Idaho);Ada County v. Bottolfsen,61 Idaho 64, 97 P.2d 599;Hay v. Hay,40 Idaho 159, 232 P. 895;Cummings v. Steele, 6 Idaho 666, 59 P. 15.)

The default decree in this action was entered May 11, 1938; the petitioned did not commence his action herein until June 2, 1942; these proceedings for modification are in effect an entirely new proceedings and petitioner is entitled to have his hearing before an unprejudiced tribunal.(Keller v. Keller,30 Idaho 79, 162 P. 927;Bedolfe v. Bedolfe, 127 P. 594, 595(Wash.)

Charles E. Horning for defendant.

An affidavit of prejudice filed under the provisions of Sec. 1-1801, I. C. A., as amended byChap. 218 of the 1933 Session Laws, is filed too late if not filed until after some controversial issue in the case has been submitted to and ruled upon by the district judge whose disqualification is sought.(Aker v. Coleman,60 Idaho 118, 125-126.)

A divorce decree, with reference to the custody of minor children, is not a final decree, but is of an interlocutory character, and a proceeding instituted for the purpose of obtaining a modification of such a decree is not an independent proceeding but is a proceeding which is incidental and ancillary to the suit for divorce which, so far as the custody of minor children is concerned, is still pending and open for further litigation before the judge who tried the suit and entered the decree.(Sec. 31-705, I. C. A.;Hersey v. Hersey(Mass.),171 N.E. 815, 70 A. L. R. 518; Morrill v. Morrill (Conn.), A. 1;Annotation, 70 A. L. R. 526-532.)

BUDGE, J. Givens, C.J., and Holden, and Ailshie, JJ., concur.

OPINION

BUDGE, J.

This is an application for a writ of review to the Honorable Albert H. Featherstone, District Judge of the District Court of the First Judicial District, and Anna K. Battick, clerk of the district court, requiring them to certify to this court, for review, all proceedings had and done in relation to that certain order made by said district judge on July 9, 1942, ordering and commanding petitioner to pay to Charles E. Horning $ 200.00 to apply on attorney's fees and $ 50.00 expense money to Elizabeth Mary Price, former wife of petitioner, together with petitioner's application for change of judge and his affidavit of bias and prejudice in support thereof.

The pertinent facts disclosed by the record are substantially as follows:

Elizabeth Mary Price, hereinafter referred to as the plaintiff, commenced an action in the District Court of the First Judicial District against Raymond Frank Price, her husband, hereinafter referred to as the petitioner, for divorce.Said action was filed February 3, 1938.To the original complaint of plaintiff, a general demurrer was interposed, and sustained.Whereupon an amended complaint was filed, to which a general demurrer was likewise interposed and overruled.Whereupon petitioner, in open court, declined to plead further.His default was thereafter duly entered.The court, after hearing testimony, made and entered, May 11, 1938, its findings of fact and conclusions of law and its decree, awarding to plaintiff the custody of the minor children of plaintiff and petitioner.

No further proceedings were had until June 2, 1942, when petitioner filed a petition for modification of the divorce decree, praying therein that the custody of the minor children be withdrawn from plaintiff and awarded to him.June 29, 1942, plaintiff filed a motion, supported by affidavit, for an allowance of $ 200.00 attorney's fee and $ 50.00 expense money to defray her costs and expenses in defending against the petition filed by petitioner.On the same date the defendant, district judge, made an order requiring the petitioner to appear July 9, 1942, and show cause, if any he might have, why the allowance prayed for by plaintiff should not be made.July 2, 1942, the petitioner filed with the clerk of the District Court of the First Judicial District, an affidavit of bias or prejudice, under the provisions of Sec. 1-1801, I. C. A., as amended byChap. 218 of the 1933 Session Laws, seeking to disqualify the defendant, district judge.On or about July 9th, petitioner filed an answer and affidavit in opposition to the motion and affidavit of plaintiff for allowance of attorney's fees, costs and expenses, heretofore referred to; on the same date plaintiff's petition for attorney's fees and expense money came on for hearing.Petitioner did not appear and was not represented by counsel.Whereupon the defendant, district judge, made and entered an order requiring petitioner to pay to Charles E. Horning, attorney for plaintiff, the sum of $ 200.00 to apply on attorney's fees, and the further sum of $ 50.00 costs and expenses necessarily to be incurred by plaintiff in defending against petitioner's petition for modification of the divorce decree.

In order to have the above order reviewed, petitioner sought, and obtained, from this court a writ of review, which writ issued July 21, 1942, directed to the defendant, district judge, and the clerk of said district court, requiring them to certify and transmit to this court all records, papers and proceedings had in the District Court in relation to that certain order made July 9, 1942, as stated above; and further certify and transmit petitioner's application for change of judge and affidavit of prejudice.

To the writ of review the defendant, district judge, duly made his answer and return, wherein he sets out substantially the facts as hereinbefore related, and in addition thereto denied that he is, or was, biased or prejudiced against petitioner; and that he declined to call in another district judge, for the further reason and upon the ground that prior to, and at the time, the divorce proceedings were had, and the decree entered, he was, and now is, the duly elected and qualified district judge of the First Judicial District.That the present proceeding for the modification of the divorce decree is not an independent action, but incident to, and ancillary to, the divorce suit.That, so far as the custody of said minor children is concerned, the divorce suit was not terminated upon the rendition of the divorce decree.That, with respect to the custody of said minor children, said suit is still pending.That said petition for modification of the divorce decree is a continuation of, and a further move in, said divorce action, all of which was contemplated and provided for in and by Sec....