State ex rel. Moore v. Fourth Judicial Dist. Court

• Decision Date: 28 September 1961
• Docket Number: No. 4459,4459
• Citation: 77 Nev. 357,364 P.2d 1073
• Court: Nevada Supreme Court
• Parties: STATE of Nevada on the relation of C. W. MOORE and Jack Utter, Relators, v. FOURTH JUDICIAL DISTRICT COURT of the State of Nevada, The Honorable Taylor H. Wines, presiding Judge thereof, Respondent.

Page 1073

364 P.2d 1073

77 Nev. 357

STATE of Nevada on the relation of C. W. MOORE and Jack Utter, Relators, v. FOURTH JUDICIAL DISTRICT COURT of the State of Nevada, The Honorable Taylor H. Wines, presiding Judge thereof, Respondent.

No. 4459.

Supreme Court of Nevada.

Sept. 28, 1961.

Grubic, Drendel & Bradley, Reno, for relators.

Orville R. Wilson, Mann & Scott, Elko, for respondent.

BADT, Chief Justice.

Relators seek a writ of mandamus directing the respondent district judge to call in the district judge of some other district to preside at the hearing and trial of an action pending before the respondent judge. The petition grows out of said respondent's refusal to call in another judge despite the filing by relators, as parties to the pending action below, of the statutory affidavit of prejudice. ¹

The circumstances are as follows: A. R. Sartain sued Pioneer Title Insurance Company of Nevada (made a defendant simply because of its position as escrow holder) and Spring Creek Ranch Co., both being Nevada corporations, to recover a $25,000 cash deposit and a $175,000 draft, and to cancel a subsisting escrow. The complaint was apparently based on a written contract whereunder Sartain agreed to purchase, and Spring Creek agreed to sell, certain real property for the agreed sum of $200,000, and upon an alleged breach by Spring Creek. The latter answered alleging full performance, and filed a counterclaim and cross-claim seeking damages. Sartain and Pioneer Title both replied, the latter asking simply that the rights of the main parties be determined and the escrow fees paid.

These matters being at issue, Moore and Utter on May 3, 1961 filed their motion for leave to intervene and their proposed complaint in intervention. They alleged that they were licensed real estate brokers and had a written contract with Sartain for the payment of a $30,000 commission upon final closing of the sale. They alleged their performance, Sartain's willful breach of his contract with Spring Creek and his refusal to pay the commission, and sought judgment against Sartain for $30,000. The motion was made pursuant to NRCP Rule 24(b) ² that the interveners' claim and the main action had a question of law and fact in common. The motion was presented in chambers on May 18, 1961, with all parties represented, and was submitted without argument, Sartain refusing, however, to stipulate to the intervention. The court on said date granted the order. The complaint in intervention was filed May 22, 1961 and Sartain answered June 8. On July 5, Sartain noticed for July 17 his motion to set the case for trial. At the hearing of the motion to set, Sartain asked for a trial date of September 5, while interveners asked for a trial later than October 15. Defendant sought a date later in September. The court set the trial for September 18, 1961, without a jury.

On July 24, 1961 interveners filed a statutory affidavit of prejudice (see footnote 1) with the required affidavit and payment, and on August 14 Sartain, on notice, moved to strike the same on the ground that it had been untimely filed in that two contested matters (the motion for leave to intervene and the motion to set the cause for trial) had theretofore been heard. The court minutes show that the court granted the motion to strike the affidavit of prejudice, ordered that the trial proceed between the original parties on the date set, and that a separate trial be had before another judge on the claim of interveners. The court thereafter on August 23, 1961 made and filed an additional order reciting the previous order striking the affidavit because it was untimely filed, and stated further: 'Now, therefore, pursuant to NRCP Rule 42(b) ³, the Court, on its own motion and to avoid prejudice, does hereby order, adjudge and decree: 1. That a separate trial be had as to the issues raised by the Complaint in Intervention and the Answers thereto. 2. That the Undersigned District Judge does hereby disqualify himself from hearing or deciding the issues raised in such separate trial.'

Were out statutes and rules other than they are, and were our opinions in earlier appeals other than they are, we should be inclined to say that respondent's orders constituted a fair and reasonable disposition of the matter. We are, however, compelled to hold that the affidavit of prejudice was not untimely filed, and that the respondent judge was therefore deprived of all discretion in the matter and it was his statutory duty to proceed no further in the action other than to assign it to another judge as provided by law. Tarsey v. Dunes Hotel, 75 Nev. 364, 343 P.2d 910; State ex rel. Kline v. Eighth Judicial District Court, 70 Nev. 172, 264 P.2d 396; State ex rel. Stokes v. Second Judicial District Court, 55 Nev. 115, 27 P.2d 534; State ex rel. Beach v. Fifth Judicial District Court, 53 Nev. 444, 5 P.2d 535.

It remains then only to consider the two instances of the asserted prior hearings of contested matters.

(1) We first consider the hearing of the petition for leave to intervene. Bearing in mind that the right to file a disqualifying affidavit is restricted by NRS 1.230, subd. 5 to a party to a civil action, it is evident that Moore and Utter were not parties to the action at the hearing of their intervention petition. They did not become parties to the action until they had filed their complaint in intervention pursuant to the leave granted by the court. It is true that they were parties to an ancillary proceeding, but this did not qualify them to file an affidavit of prejudice. It is not without significance that all the provisions of the preceding sections 1, 2, 3, and 4 of NRS 1.230 having to do with the disqualifying of the judge for actual or implied bias prohibit him from acting in the particular action or proceeding. This cannot be characterized as a mere inadvertence of the legislature. Significant, too, is the fact that our original disqualification statute (Sec. 2464, Baily & Hammond, General Stats.1885; Sec. 2545, Cutting, Compiled Laws, Stats.1864-65, p. 116, Chap. XIX, Sec. 45) precluded a judge from acting as such in an action or proceeding to which he is a party or in which he has an interest, or where he is related to the parties, etc. And any party to such proceeding might file the charge of actual or implied bias. Not so under subsection 5. Moore and Utter, not being parties to the action at the time of the intervention hearing, had no statutory right at that time to file an affidavit of prejudice under subsection 5. They were therefore not precluded by the requirement that a party to the action file the affidavit before the hearing of a contested matter. They could not be prejudiced by not doing an act that they had no right to do.

(2) The other prior asserted hearing of a 'contested matter' relates to the hearing of plaintiff's motion ⁴ to set the cause for trial, at which the several parties requested different dates. Whether or not this was a 'contest,' we are satisfied that the statute expressly excluded it from the requirement: 'Every [such] affidavit [of prejudice] must be filed before the hearing on any contested matter * * *.' Subsection 7 of the rule expressly provided: 'This section shall not apply to the arrangement of the calendar or the regulation of the order of business.' We are not impressed with respondent's arguments distinguishing a setting on motion from a simple listing of cases with the trial dates of each--the latter being characterized as the true picture of what is meant by a court's 'calendar.' As applied to this issue subsection 7 requires no construction.

(3) Respondent contends that interveners may not take advantage of the recusation statute, that they must take the case as they find it. It is true that the Supreme Court of New Mexico held in Harms v. Coors, 50 N.M. 12, 167 P.2d 353, 354, 'that considerations controlling upon the right of intervention clearly reject as a right in the intervenor the benefit of a statutory disqualification of the judge.' In the earlier case of State ex rel. Lebeck v. Chavez, 45 N.M. 161, 113 P.2d 179, the same court rejected the right of recusation in the interveners because they had not yet become parties at the time they filed the affidavit of disqualification. In a special concurring opinion Sadler, J., rejected this ground for denying the right to challenge the judge. However this may be, ⁵ the theory...