State ex rel. Kane v. Dobler

• Decision Date: 12 July 1938
• Docket Number: 2068
• Citation: 53 Wyo. 252,81 P.2d 300
• Parties: STATE EX REL. KANE ET AL. v. DOBLER, JUSTICE OF THE PEACE
• Court: Wyoming Supreme Court

81 P.2d 300

53 Wyo. 252

STATE EX REL. KANE ET AL. v. DOBLER, JUSTICE OF THE PEACE

No. 2068

Supreme Court of Wyoming

July 12, 1938

APPEAL from the District Court, Fremont County; P. W. METZ, Judge.

Prohibition proceeding by the State, on the relation of C. I. Kane and another, against George F. Dobler, Justice of the Peace in and for Fremont County, Wyoming, to restrain George F. Dobler from issuing execution and enforcing a judgment theretofore entered by him against C. I. Kane and another. From a judgment denying the writ, the relators appeal.

Affirmed.

John J Spriggs of Lander for appellants.

This appeal is taken from a judgment of the district court of Fremont County on an application of relators below from an order denying a writ of prohibition to prevent the issuance of an execution by George F. Dobler, a Justice of the Peace from issuing an execution on the judgment entered by him wherein The Bon Agency was plaintiff and C. I. Kane, et al. were defendants. The district court denied the writ and entered judgment for Dobler. The action in justice court was commenced by The Bon Agency to recover on a promissory note. Defendants filed an affidavit for change of justice and paid $ 1.50 as fees for a transcript. The justice assigned the case to another justice, Donald Spiker of Riverton, and called Spiker to attend and hear the case, which was assigned for hearing on April 9, 1937. On account of illness of one of the defendants, they asked for a re-setting of the case, which was refused, and Justice Dobler, over the objections of the defendants, heard the case on April 9 and entered judgment against defendants. As he was about to enter execution on the judgment, defendants brought an action of prohibition in the district court, on the ground that the judgment was void for want of jurisdiction. The pleadings were made up. Appellants moved for judgment on the pleadings, which was denied. From a judgment in favor of Dobler, this appeal is taken. Appellants contend that Dobler having lost jurisdiction, his judgment was void and that they were entitled to a writ of prohibition against a levy and sale of their property under a void judgment. Defendants also contend that the State Constitution, Article 1, Section 8 and the statute Sections 62-501-7, inclusive, R. S. 1931, guarantee the right to a fair and impartial trial, and that it was an abuse of discretion to deny a change under the facts in the case at bar. The filing of the affidavit disqualifies the justice and he has no further jurisdiction, other than to call in another justice, or assign to another justice. Huhn v. Quinn, 21 Wyo. 51, 128 P. 514; Murdica v. State, 22 Wyo. 196, 137 P. 574. Prohibition is the proper remedy on denial of change. State v. District Court, 39 Wyo. 24, 269 P. 35. There is no other adequate remedy at law. The law contemplates, first, a trial in the justice court before a qualified justice. The costs are less, the opportunities satisfactory, attorneys' fees less, and many other advantages, which are substantial and legal, and constitutional rights. Then either party may appeal. But an appeal must be from a valid judgment. There is no appeal from an order denying the change of justice. A judgment by a disqualified justice is the same as no judgment at all. It is a nullity. Knouse v. Nimocks, 66 P.2d 438. Since all the facts are admitted by the answer, as well as by the evidence, the right to the writ is plain. The judgment should be reversed with directions to grant the writ.

For the respondent, there was a brief and oral argument by H. S. Harnsberger of Lander.

Upon the filing of the affidavit of prejudice and on the request of appellants, Justice Dobler called Justice Spiker, residing at Riverton twenty-five miles distant, he being the nearest justice. Justice Spiker demanded his per diem fees and mileage, at ten cents per mile for fifty miles. Justice Dobler then set the case for trial on April 9, 1927, and demanded that appellants advance one day's per diem of $ 5.00 and $ 5.00 for mileage necessary to be travelled by Justice Spiker. Appellants appeared and requested a continuance on April 9. Justice Dobler ruled that their application for a change of justice was incomplete and thereupon proceeded to hear the case on April 9, 1937. The defendants failed to appear and Justice Dobler heard the evidence submitted by the Bon Agency and rendered judgment thereon. Appellants brought this action for a writ of prohibition in the district court and upon hearing had the writ was denied. Appellants contend that the mere filing of their affidavit of prohibition and the payment of $ 1.50 disqualified the justice of the peace for all purposes, citing Secs. 62-501-507, 1931, and some Wyoming cases. They further contend that Justice Dobler abused his discretion by denying a change of justice. They cite the California case of Knouse v. Nimocks, which is not in point on the facts. The Wyoming cases relate to district judges and have no application here. In the case of State v. Miller (Wash.) 2 L. R. A. (N. S.) 1906, page 395, it was held that prohibition will not lie to restrain a court from proceeding in a case in which it has erroneously denied a change of venue, since an appeal from the judgment will afford an adequate remedy. The same rule was followed in Schobarg v. Manson (Ky.) 61 S.W. 999 and also in People v. Whitney, 47 Cal. 584. The Washington court seemingly reversed its earlier decisions on the subject in the case of State v. Court, L. R. A. 1917F, holding that an appeal was not a plain, speedy and adequate remedy to correct a refusal, to change venue. In the case of State v. Court, 81 A. L. R. 1226, it was held that prohibition lies to prevent a prejudiced judge from sitting at the trial of a case. In Haliburton, et al. v. Williams (Okla.) 27 P.2d 360, it was held that the writ would be issued where the remedy available is insufficient to prevent immediate injury or hardship. See also Harrington v. Court (Okla.) 279 P. 317; Talley v. Maupin, 168 P. 734; Pioneer Company v. Bartlesville, 111 P. 207; Bardwell v. Refining Company, 280 P. 1083. A writ of prohibition was denied in State v. Court (Wyo.) 277 P. 378. In the case of State v. Court (Wyo.) 245 P. 123, it was held that prohibition would lie to prevent proceedings on a voidable summons. See also Washakie Livestock Company v. Meigh (Wyo.) 33 P.2d 922. The justice code differs from the code of civil procedure with reference to change of venue and change of judge in the district court. Section 89-1104 should be compared with Section 62-507, R. S. 1931, the latter being from the justice's code and providing that a justice calling in another justice retains jurisdiction until the justice who was called to take his place appears. This section differs from the statute governing change of venue in the district court. A justice called in may demand the payment of his fees in advance. Section 89-1618, R. S. 1931. A justice of the peace must look to his fees for compensation, whereas the expenses of a district judge incurred for travel are paid by the state. The fees of a justice, including his mileage are fixed by Section 62-508, R. S. 1931. When Justice Spiker demanded his fees in advance, he was acting within his rights. Taney v. Vollenweider, 72 P. 415; Presley v. Dean, 79 P. 71; 35 C. J. 562, 564; 46 C. J. 1028; Barnhart v. Davis, 2 P. 633; Ritzman v. Burnham (Cal.) 46 P. 379; Bardwell v. Refining Co., 280 P. 1083. There is no statutory authority for the disqualification of a justice. Where there is another justice within twenty miles of the original justice, he may be called in to hear the case. Sec. 62-501, R. S. However, if there be no justice within twenty miles, the case may be transferred to the place where the called justice resides. Secs. 62-502-506, R. S. 1931. In such case, a transcript is sent by the original justice. We do not feel that Section 62-506 has application here, since it applies to applications for a change of place of trial, i. e., an application for a change of venue and not for a change of justice. We again refer to the case of State v. Court, 8 A. L. R. 1226, where the point is stated very clearly. It is respectfully submitted: (1) That prohibition does not lie where there is a plain, speedy and adequate remedy by appeal; (2) that application for a change of justice is not complete by the mere filing of the affidavit of bias and prejudice, when the justice called, demands his mileage expense and fees, and the same have not been paid by the applicant; (3) that there is no statutory authority disqualifying a justice for bias and prejudice, when there is no other justice within twenty miles of the justice to whom the application is made.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

The district court of Fremont County declined to issue a writ of prohibition directed to the respondent George F. Dobler, a justice of the peace of that county having his office in Lander, Wyoming, to restrain him from issuing execution and enforcing a judgment theretofore entered by said justice against the relators, C. I. Jane and Nina B. Kane. The record made in the district court aforesaid has been brought here by the parties last named as appellants under the direct appeal procedure, and presents as facts material to be considered in its disposition the following:

The Bon Agency, Incorporated, as plaintiff, brought an action against the relators aforesaid upon a promissory note for $ 140.66 alleged to have been executed and delivered by them to the plaintiff, the proceeding being instituted in the justice court of the justice above named. At the inception of the lawsuit certain property was attached as owned by relators. A few days later a claim of...