State ex rel. Clover Valley Lumber Co. v. Sixth Judicial Dist. Ct. in and for Pershing County

• Decision Date: 02 November 1938
• Docket Number: 3242.
• Citation: 83 P.2d 1031,58 Nev. 456
• Parties: STATE ex rel. CLOVER VALLEY LUMBER CO. v. SIXTH JUDICIAL DISTRICT COURT IN AND FOR PERSHING COUNTY et al.
• Court: Nevada Supreme Court

83 P.2d 1031

58 Nev. 456

STATE ex rel. CLOVER VALLEY LUMBER CO. v. SIXTH JUDICIAL DISTRICT COURT IN AND FOR PERSHING COUNTY et al.

No. 3242.

Supreme Court of Nevada

November 2, 1938

Original proceeding in mandamus by the State on the relation of the Clover Valley Lumber Company, a corporation, against the Sixth Judicial District Court of the State of Nevada, in and for the County of Pershing, and the Honorable L. O. Hawkins District Judge.

Writ granted.

E. F Lunsford, of Reno, for petitioner.

W. A Wilson, of Lovelock, and Art E. Jeffers, of Reno, for respondents.

L. D Summerfield and Harlan L. Heward, both of Reno, amici curiæ.

GUILD District Judge.

The Petitioner, Clover Valley Lumber Company, a corporation, has petitioned for a writ of mandamus, directed to Honorable L. O. Hawkins, Judge of the Sixth Judicial District Court of the State of Nevada, in and for the County of Pershing, to call in another judge to hear, try and determine a cause entitled "Harry Lee Brutan, plaintiff, v. C. D. Terwillinger and The Jungo Star Gold Mines Company, a corporation, defendants," and in which action the Petitioner, Clover Valley Lumber Company, a corporation, has been made party defendant in the action.

The Petitioner alleges that on the 24th of June, 1938, it filed with the Clerk of said court, in which said action was then, and is now pending, an Affidavit for Change of Judge, made by J. J. Pelmar, the Assistant Secretary of said Clover Valley Lumber Company, a corporation, and simultaneously deposited the sum of $25 cash with said clerk and filed an affidavit of prejudice, or bias, and made its request of said Honorable L. O. Hawkins, Judge aforesaid, that he request the judge of some other district court to preside at the hearing and trial of said action. The Petitioner alleges that the request was made in accordance with that certain act of the legislature of the State of Nevada entitled, "An Act to amend an act entitled 'An act concerning the courts of justice of this state and judicial officers,' approved January 26, 1865, as amended, by amending section 45 thereof and by adding two additional sections to said act, to be known as sections 45a and 45b," approved March 25, 1931, St.1931, c. 153.

An Alternative Writ issued out of this Court on the 29th day of June, 1938, made returnable on the 18th of July, 1938. The matter was presented, and argued by respective counsel, and amicus curæ, to the Court on the 20th of July, 1938, and submitted.

The essential matters of Respondents' Answer set forth that the Request for Change of Judge was filed under the provisions of Section 8407, N.C.L.1929, as amended in the Session Laws of 1931, c. 153, p. 247, and entirely disregarded the amendments to said section 8407 as made by the Session Laws of 1937, page 214; that the request was not timely filed; that the fee of $25 cash was not deposited with the Clerk of the District Court; that several contested matters in said action had been determined, heard and disposed of by the Presiding Judge, and that the matter was on June 14th set for trial for the 30th of June, 1938. The Answer further alleges that on June 24th, 1938, a second Request for Change of Judge was filed in the said Court and cause, without first having obtained the consent in writing of the Judge to whom the request or application was first made, all of which was in violation of Rule XI. subdivision Fourth thereof, and Rule XLII of the Rules of the District Court of the State of Nevada; and further alleges that although the second Request for Change of Judge was not denied prior to the time the Alternative Writ of Mandamus was served upon Respondent that the Respondent admits that he would have denied said second request or application for change of Judge, and will, unless the Supreme Court requires otherwise, deny said request.

It appears that at the time of the making of the first request the Petitioner deposited a check with the Clerk of the Court, and that later, and in the second request, cash was tendered to the Clerk. The receipt of the Clerk in the sum of $25, dated June 24th, is an exhibit in the matter, as is also the Notice of Request for Change of Judge, and the affidavit of J. J. Pelmar, charging bias and prejudice, as aforesaid.

The Reply to the Answer sets forth that the attorney for the Relator upon filing the affidavit for change of Judge gave the said Clerk the attorney's check in the sum of $25; that the Clerk accepted said check and filed said affidavit of bias or prejudice referred to in the proceedings; and further sets forth that no rule of the District Court is applicable to this proceeding, as related by Respondent, for the reason that the matter is not a motion, writ, rule or order as contemplated by and referred to in the above Rules of the District Court, but, on the contrary, that the proceeding is under a statute which neither contemplates nor implies any motion, application or petition shall be filed or made to the court.

We are in accord with this viewpoint.

Petitioner further replies and denies that the Petitioner's second request had not been denied prior to the time of service of the Alternative Writ of Mandamus herein; and alleges that the conduct on the part of Respondent in failing, omitting and declining to grant said Request for Change of Judge up to and including a few moments prior to the time set for trial signified a clear and unequivocal intention on the part of the Respondent not to grant the Request for Change of Judge, amounting in the law to a refusal so to do.

The issue comes before us squarely upon the interpretation and construction of the 1937 amendment of Section 8407, N.C.L. 1929.

For many years, and prior to 1931, our statute read as follows:

"Judge Disqualified, When--Proviso. A judge shall not act as such in an action or proceeding: First, when he is a party or interested in the action or proceeding. Second, when he is related to either party by consanguinity or affinity within the third degree. Third, when he has been attorney or counsel for either of the parties in the action or proceeding. Fourth, when he is related to an attorney or counselor for either of the parties by consanguinity or affinity within the fourth degree; provided, that this section shall not apply to the arrangement of the calendar, or the regulation of the order of business; and provided further, that the fourth subdivision of this section shall not apply to the presentation of ex parte or uncontested matters, except in fixing fees for attorneys related within the degree of consanguinity or affinity therein specified." Section 8407, N.C.L.1929.

In 1931 the legislature amended said statute, as follows:

"Section 45. A judge shall not act as such in an action or proceeding: First, when he is a party or interested in the action or proceeding. Second, when he is related to either party by consanguinity or affinity within the third degree. Third, when he has been attorney or counsel for either of the parties in the action or proceeding. Fourth, when he is related to an attorney or counselor for either of the parties by consanguinity or affinity within the fourth degree. Fifth, if either party to a civil action in the district court or his or its attorney or agent shall file an affidavit alleging that the affiant has cause to believe and does believe that on account of the bias or prejudice or interest of said judge he cannot obtain a fair and impartial trial, the said judge shall at once transfer the action to some other department of the court, if there be more than one department of said court in said district, or request the judge of some other district court of some other district to preside at the hearing and trial of such action; provided, the party filing such affidavit for change of judge shall at time of filing same pay to the clerk of the court in which such affidavit is filed the sum of twenty-five dollars, which sum shall be by the clerk transmitted to the state treasurer, who shall place the same to the credit of the district judges' traveling expense fund; provided, that this section shall not apply to the arrangement of the calendar, or the regulation of the order of business; and provided further, that the fourth subdivision of this section shall not apply to the presentation of ex parte or uncontested matters, except in fixing fees for attorneys related within the degree of consanguinity or affinity therein specified. ***

"Section 45a. No judge or court shall punish for contempt anyone making, filing or presenting such affidavit or motion founded thereon. ***

"Section 45b. Not more than one change of judge may be granted in any action, but each party shall be heard to urge his objections to any judge in the first instance, and the change of

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