State ex rel. Lucia v. Monson
| Decision Date | 20 October 1927 |
| Docket Number | No. 5435.,5435. |
| Citation | 215 N.W. 680,55 N.D. 892 |
| Parties | STATE ex rel. LUCIA v. MONSON, County Judge. |
| Court | North Dakota Supreme Court |
The affidavit of prejudice described in section 8955 of the Code may be filed before the opening day of any term in which the case appears upon the calendar for trial, irrespective of the number of such terms.
When such affidavit has been filed, the judge of the county court becomes, ipso facto, disqualified to try the case.
The writ of prohibition will lie when a judge acts “without” his jurisdiction, even though the court itself has jurisdiction of the person of the defendant and the charge against him.
Where such judge is thus disqualified, but announces his intention to proceed with the trial of the case, a writ of prohibition will be issued by this court restraining him from proceeding in the case, except for the purpose of procuring another judge to try the case or for the purpose of certifying all proceedings to the district court. The defendant is not required to wait and raise the issue on appeal.
Original application by the State, on the relation of Clinton Lucia, for a writ of prohibition to be directed to Judge Leigh J. Monson, County Judge of Cass County. Writ granted.W. H. Barnett, and Divet, Shure, Murphy & Thorp, all of Fargo, for petitioner.
Geo. Shafer, Atty. Gen., and K. E. Leighton, Asst. Atty. Gen., John Pollock, State's Atty., and E. A. Weston, Asst. State's Atty., both of Fargo, for respondent.
The respondent is the judge of the county court of Cass county, a court with increased jurisdiction. Petitioner was charged in said court with “willfully and unlawfully having in his possession intoxicating liquors.” This action was on the calendar for the June term of 1927, and during that term the petitioner filed an affidavit of prejudice against the respondent, under the provisions of section 8955 of the Compiled Laws 1913 of this state, but change of judge was denied as the affidavit was not filed before the commencement of the term. The petitioner then moved for a continuance of his case over the term, which motion was granted. Prior to the opening of the October term, and on the 29th day of August, 1927, the petitioner filed another affidavit of prejudice against the respondent. It is alleged by the petitioner, and not denied by the respondent, that the respondent has announced he will not consider this second affidavit but will proceed to try the case. The petitioner, upon learning the attitude of the county judge, applied to this court for a writ of prohibition, and an alternative writ was issued. The respondent admits all of these facts, except that he does not say he refuses to consider the affidavit. Nevertheless, he does not deny the allegation that he has stated he intends to proceed and try the case himself. On the return day the respondent moved to quash the alternative writ for lack of jurisdiction on the ground the petitioner has an adequate remedy by appeal from any final judgment, and in case this motion be denied he filed his answer raising but two questions in his return: That the affidavit of prejudice filed August 29, 1927, is not such affidavit as is contemplated by section 8955 of the Code; and that the petitioner has an adequate remedy at law.
[1] It is the contention of the respondent that section 8955 contemplates no affidavit of prejudice can be filed after “the first term at which any cause is triable,” and that such provision cannot “apply to any term to which a case has been continued at the request of the party to such action.” Our statutory provisions with reference to affidavits of prejudice differ from those of many states. In many of the jurisdictions, affidavits of prejudice are presented to the judge, counter affidavits may be filed, and it is for the judge to determine in the first place whether the application should be granted for the cause stated. This is not the principle underlying our statutes, and for that reason many of the decisions of other jurisdictions are not applicable to cases in this state. The language of the statute is plain. It says, “when-ever the defendant in a criminal action shall, before the opening of any term in which the case appears upon the calendar for trial, file his affidavit * * * the court shall thereafter proceed in said action, as follows:” and then proceeds to give to the judge the option of procuring another judge to try the case, or of certifying all proceedings to the district court.
The respondent says the concluding sentence of subdivision 3 of section 8955 precludes the petitioner from filing this second affidavit; that the statute contemplates the filing of the affidavit before the opening of the first term in which he could file it; and that his “failure to file the affidavit of prejudice hereinbefore mentioned within the time before specified * * * shall constitute a waiver of all objections to the trial of such action by the presiding judge of such county court.” This sentence means the “failure to file the affidavit of prejudice” before “the opening [day] of any term in which the case appears upon the calendar for trial” shall constitute a waiver. It does not limit the filing to the first term. It was a customary proceeding in many jurisdictions to permit the filing of such affidavits at any time before the commencement of the trial. This, however, was unfair to the state and was taken advantage of for delay. To prevent this abuse, and at the same time give the defendant the opportunity of being tried before a judge whom he believed to be unprejudiced, he was required to file the affidavit before the opening day of the term, rather than before the commencement of the trial. Under the old rule it was immaterial how many terms the case was on the calender. It is immaterial in this case. So long as the case is on the calendar of any term for trial, the affidavit may be filed before the opening day of that term.
The other contention of the respondent is that petitioner has an adequate remedy at law. It was the manifest duty of the respondent to call in another judge upon the filing of an affidavit alleging prejudice. State v. Kent, 4 N. D. 577, 62 N. W. 631, 27 L. R. A. 686;State v. Kent, 5 N. D. 516, 529, 67 N. W. 1052, 35 L. R. A. 518. In the case of Grabau v....
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