State v. District Court of Thirteenth Judicial Dist. in and for Yellowstone County

• Decision Date: 10 February 1915
• Docket Number: 3605.
• Citation: 146 P. 539,50 Mont. 259
• Parties: STATE EX REL. FIRST TRUST & SAVINGS BANK OF BILLINGS v. DISTRICT COURT OF THIRTEENTH JUDICIAL DIST. IN AND FOR YELLOWSTONE COUNTY ET AL.
• Court: Montana Supreme Court

146 P. 539

50 Mont. 259

STATE EX REL. FIRST TRUST & SAVINGS BANK OF BILLINGS v. DISTRICT COURT OF THIRTEENTH JUDICIAL DIST. IN AND FOR YELLOWSTONE COUNTY ET AL.

No. 3605.

Supreme Court of Montana

February 10, 1915

Certiorari by the State of Montana, on relation of the First Trust & Savings Bank of Billings, Mont., against the District Court of the Thirteenth Judicial District in and for the County of Yellowstone, and George W. Pierson, a Judge thereof. Motion to quash writ overruled, and order of George W. Pierson Judge, annulled.

O. F Goddard, of Billings, for relator.

D. M Kelly, Atty. Gen., and J. H. Alvord, Asst. Atty. Gen., for respondents.

HOLLOWAY J.

On July 10, 1910, the First Trust & Savings Bank of Billings, a domestic corporation, failed to open for business, and the state, one of its creditors, instituted a suit in the district court of Yellowstone county against the bank to have it declared insolvent and its business wound up. The complaint also prayed that a receiver be appointed to take over the property belonging to the bank and to administer the trust fund for the benefit of those entitled to share in its distribution. Such proceedings were had thereafter that on July 14th S. G. Reynolds was appointed receiver and acted as such until July, 1912, when he resigned. Arthur H. Brown was thereupon appointed in his stead and duly qualified, entered upon the discharge of his duties as such receiver, and continued actively until suspended. On November 24, 1914 while the original suit was still pending, and while a large amount of property belonging to the trust estate was still undisposed of, the defendant bank caused to be filed in the district court an affidavit seeking to disqualify Hon. George W. Pierson, one of the judges, for bias and prejudice; but, notwithstanding such affidavit, Judge Pierson on November 27th made an order suspending the receiver, and the bank thereupon secured a writ of certiorari from this court to review the order. In response to the writ, the clerk of the district court has certified all the records of the proceedings relating to the order in question. The respondents have moved to quash the writ, and the matter is before us for determination.

We have presented also a document entitled "Return of Respondent George W. Pierson." This is in the nature of a pleading--an answer to the averments in the affidavit for the writ--but it is not a return and has no place in this proceeding.

The writ of review is issued upon a proper affidavit by a party beneficially interested.

Section 7204, Rev. Codes. The only purpose of such affidavit is to move the reviewing court to act. When the writ is issued, the affidavit becomes functus officio. It is not a pleading, and its averments cannot be traversed by any other pleading. The writ commands the party to whom directed to certify a transcript of the proceedings sought to have reviewed (section 7206); and, if directed to a court, the clerk is ordered to prepare and certify the record to the reviewing court (section 7205). The record thus duly certified constitutes the only return which can be made (6 Cyc. 804); and the only questions which can be presented for determination to the reviewing court must appear affirmatively from the face of this record.

"The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board or officer, has regularly pursued the authority of such tribunal, board or officer." Section 7209.

The document designated the return of the respondent judge must therefore be disregarded.

The question presented by the record is: Did Judge Pierson have authority to suspend the receiver after the disqualifying affidavit was filed? Section 6315, Revised Codes, as amended by an act of the Eleventh legislative assembly (Laws 1909, p 161), authorizes any party to an action, motion, or proceeding to file with the clerk of the court, in which the same is pending, an affidavit that he has reason to believe and does believe that he cannot have a fair and impartial trial or hearing before a district judge presiding in the court, by reason of the bias or prejudice of such judge. Upon filing the affidavit, the statute in question declares that the judge, as to whom the disqualification is averred, shall be without authority to act further in the action, motion, or proceeding, except to arrange the calendar, regulate the order of business, transfer the case to another court, or call in another judge to act. The Attorney General, for the respondents, concedes that, prior to the appointment of the receiver, the defendant bank might have exercised the power conferred by the so-called...