State ex rel. Johnson v. Circuit Court for Deschutes County
| Decision Date | 24 March 1925 |
| Citation | 114 Or. 6,234 P. 262 |
| Parties | STATE EX REL. JOHNSON v. CIRCUIT COURT FOR DESCHUTES COUNTY. |
| Court | Oregon Supreme Court |
R. B. Parsons, of Bend (R. B. Parsons, of Bend, and John K. Kollock, of Portland, on the brief), for plaintiff.
F. S Senn, of Portland (H. H. De Armond and Jay H. Upton, both of Bend, and Frank S. Senn, of Portland, on the brief), for defendant.
Herein is considered the plaintiff's petition for rehearing.
The alternative writ of mandamus issued out of this court at the suit of the plaintiff recites that the defendant is a judge of the circuit court, with the statutory powers of such an official, and that an action was instituted in the circuit court over which he presided by the relator as plaintiff against three other parties as defendants. It is further alleged in the writ as follows:
"And it further appearing that heretofore, and after the filing of said action, and before the commencement of the second trial thereof, that the relator filed his duly verified affidavit of prejudice against you as the presiding judge of said court, and that, based upon said affidavit the relator, by and through his attorney, filed a timely motion for a change of judges to hear and try said case and cause and it further appearing that you have failed and refused to sign an order to call in an outside judge or to apply to the Chief Justice of the Supreme Court of the state of Oregon to designate another judge to sit, * * * and that you still so refuse: * * * Now, therefore, we command you that, upon receipt of this writ, you immediately and forthwith enter an order designating an outside judge, * * * or show cause, if any there be, * * * why you have not done so," etc.
The former decision dismissing the writ was made upon the theory as supported by the precedents therein cited, that the application for change of judges should be made prior to any decision rendered by the obnoxious judge on any question of law or fact raised in the case. The writ fails to state facts sufficient to constitute a cause of action, because it does not appear therefrom that the plaintiff made the application in time, or, in other words, before the judge had decided any issue in the case. The statement of the time of putting in the affidavit of prejudice, "after the filing of said action, and before the commencement of the second trial thereof" leaves it utterly uncertain as to when the affidavit was in fact filed. If filed after the first trial of the action it was manifestly too late.
Now however, in his petition for rehearing, the plaintiff relies upon the return of the defendant, wherein the latter says in substance that on March 17, 1923, the plaintiff filed his affidavit of prejudice and motion for change of judges, and that thereafter on April 4, 1923, the defendant entered an order, denying the motion. The answer, however, does not state whether the first affidavit of prejudice and motion for change of judges were filed prior to any decision of law or fact made by the judge in the case. On that point, the answer is subject to the same objection as that urged against the writ. The averments of the writ are not aided by the return.
Granting however, that an affidavit was filed and motion made for change of venue before the judge had performed any duty respecting the case, yet the matter...
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