Rowan v. Gazette Printing Co.
| Decision Date | 04 December 1923 |
| Docket Number | 5319. |
| Citation | 220 P. 1104,69 Mont. 170 |
| Parties | ROWAN v. GAZETTE PRINTING CO. ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Carbon County; H. J. Miller, Judge.
Action by C. C. Rowan against the Gazette Printing Company and another. From an order setting aside a judgment for plaintiffs and vacating the default, and permitting defendants to answer, plaintiff appeals. Affirmed.
John G Skinner, of Red Lodge, and Charles A. Taylor and Shea & Wiggenhorn, all of Billings, for appellant.
W. D Rankin and E. E. Collins, both of Helena, and Goddard & Clark, of Billings, for respondents.
A. C Spencer and Robert C. Stong are the judges of the district court of the Thirteenth judicial district of this state, which district comprises Big Horn, Carbon, and Yellowstone counties. Joseph R. Jackson is one of the judges of the Second judicial district, and H. J. Miller is the judge of the Sixth judicial district. C. C. Rowan instituted this action in the district court of Carbon county to recover damages from the Gazette Printing Company and Joseph Pope for an alleged libel. After the action had been commenced, and on January 19, 1923, the defendants disqualified Judge Spencer by filing an affidavit imputing bias, pursuant to the provisions of section 8868, Revised Codes 1921. At that time a demurrer to the complaint and a motion for change of venue were pending. On January 29 Judge Stong invited Judge Miller to hold court in Carbon county, and on that day Judge Miller appeared at Red Lodge, presided in court, and among other things set the demurrer and motion for hearing on February 5. On February 5 Judge Stong continued the hearing to February 8. On February 8 Judge Miller, at the request of Judge Stong, presided in the court, heard arguments upon the demurrer and motion, and on March 9 overruled the demurrer and gave the defendants until April 12 to answer. On April 3 plaintiff made application to amend his complaint. On April 6 Judge Miller, at chambers in Livingston, made an order extending the time within which defendants might answer to the tenth day after the application to amend should be determined. On April 10 plaintiff filed a præcipe for the entry of default of defendants. On April 11 Judge Miller notified counsel for plaintiff that he had made the order of April 6. On April 12 plaintiff filed a second præcipe for the entry of default of the defendants, and their default was entered accordingly. On the same day the order of April 6 was filed with the clerk of the court. On April 25 Judge Stong was disqualified by plaintiff by filing an affidavit imputing bias pursuant to the provisions of section 8868, above. On May 3 Judge Spencer invited Judge Jackson to come to Carbon county and hear all matters which might properly come before the court in this action, and on that day Judge Jackson appeared, presided in court, heard plaintiff's testimony, and rendered and had entered a judgment in conformity with the prayer of the complaint. On May 4 Judge Jackson, upon application of defendants, made an order staying execution for 10 days. On May 7 defendants filed a notice of motion, motion, and supporting affidavits for an order setting aside the judgment, vacating the default and permitting them to file an answer which was tendered; the motion was noticed for hearing on May 12. On May 11 Judge Stong invited Judge Miller to hold court again in Carbon county on May 12. On May 12 Judge Jackson, by a telephone message from Butte to the clerk of court at Red Lodge, directed that the hearing on the motion be continued to May 26, but on the 12th the court, Judge Miller presiding, over the objections of the plaintiff, proceeded to hear the motion, and at the conclusion of the hearing made an order setting aside the judgment, vacating the default, and permitting defendants to file their proffered answer. From that order plaintiff appealed.
It is conceded by plaintiff that his application to have the default of defendants entered on April 10 was made prematurely. That the order setting aside the judgment, vacating the default, and permitting the defendants to file their answer was the only proper order that could have been made in the premises is beyond controversy. The correctness of the order itself is not questioned by plaintiff, but he does insist that Judge Miller did not have authority to preside in the district court of Carbon county on May 12 and hear and determine the motion.
If plaintiff had kept in mind certain elementary principles, the necessity for this appeal would have been obviated:
(1) "Any judge of the district court may hold court for any other district judge." Constitution, art. 8, § 12.
(2) If one district judge invites another to hold court for him, and the invitation is accepted, the invited judge, when he appears, and while he presides, has all the authority of the local judge. Section 9098, Rev. Codes 1921; Farleigh v. Kelly, 24 Mont. 369, 62 P. 495, 685.
(3) Speaking generally, when the invited judge leaves the district in which he has presided he has no authority at chambers in his own district to do anything affecting the business in the other district (State ex rel. Mannix v. District Court, 51 Mont. 310, 152 P. 753), except upon stipulation of the parties interested (Eustance v. Francis, 52 Mont. 295, 157 P. 573).
(4) When a judge is disqualified for imputed bias he is without authority to act further in the action in which he is disqualified, except to arrange the calendar, regulate the order of business, call in another judge, or transfer the cause, if a transfer is proper. Section 8868.
(5) If there be more than one judge in the district, the one first disqualified in a given case must call in another judge of the same...
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