State v. Donlan

• Decision Date: 31 March 1905
• Citation: 80 P. 244,32 Mont. 256
• Parties: STATE ex rel. NISSLER et al. v. DONLAN, Judge, et al.
• Court: Montana Supreme Court

80 P. 244

32 Mont. 256

STATE ex rel. NISSLER et al. v. DONLAN, Judge, et al.

Supreme Court of Montana

March 31, 1905

Application by the state, on relation of Christine Nissler and others for prohibition to restrain Michael Donlan, as judge of the district court of the Second Judicial District, for the county of Silver Bow, and to restrain such court, from proceeding to hear a motion to confirm the report of a referee on objections to the account of J. K. Heslet as executor of the last will and testament of Christian Nissler deceased. Alternative writ vacated and proceedings dismissed.

W. M Bickford and Geo. F. Shelton, for respondents.

BRANTLY C.J. (after stating the facts).

Much was said during the argument in this court as to whether, under the rules adopted by the judges for the apportionment of business and the assignment of judges, Judge McClernan had authority to make the order reserving to his department the determination of the controversy over the executor's account. The contention was made by relators that since, by virtue of the order of reference, the report of the referee was made to Judge McClernan, for this reason he, sitting in department 1, had jurisdiction of the matter notwithstanding the rules. Counsel for respondents contend that, inasmuch as the administration proceedings were pending in department 3 at the time the rules were adopted and promulgated, under which such business was assigned to department 3, it properly belonged there, and that Judge Donlan was exercising proper jurisdiction in proceeding to hear and determine them.

There is nothing in the record to indicate that at the time the rules were promulgated, and the apportionment of business made, any exception or reservation was discussed with the other judges or made by Judge McClernan in any manner whatever. Apparently the rules were deemed final, for the time being, and to distribute all business then pending in the court. While the judges exercising their duties in their respective departments must, for some purposes, be regarded as presiding over different courts yet the court is in fact one court, and has jurisdiction of all matters which may properly be brought before it. The assignment of this or that portion of the business to one department still leaves it pending in the district court, so that jurisdiction is not, in any sense of the word, lost by the fact that it may have theretofore been pending in another department or before another judge. If a cause or proceeding pending in any department is in such condition that another judge than the one who regularly presides there may be called in to assume jurisdiction and dispose of it, then such business might likewise be transferred from that department to another, and the judge who presides in the latter would have the same power to proceed with it as would the judge in the department from which the particular matter was transferred. Rules regulating the distribution of business under the conditions prevailing in that court are a necessity, and could hardly be dispensed with, for by no other means could unseemly conflicts of authority among the judges be avoided, and causes and proceedings before the court be conducted and disposed of in an orderly manner. When once adopted, under the limitations prescribed by law (Code Civ. Proc. § 111), they become binding upon the court and litigants, for they have the force of statutes, within the limitations of their application (18 Ency. Pl. & Pr. 1262), and should be enforced, except when the court, for good cause shown, in a particular case, may relax them in order that justice may be done. State ex rel. King v. District Court, 25 Mont. 202, 64 P. 352; M. O. P. Co. v. B. & M. C. C. & S. M. Co., 27 Mont. 288, 70 P. 1114; Martin v. De Loge, 15 Mont. 343, 39 P. 312.

Ostensibly, the rules promulgated by the judges on February 8th were in full force, and no reason appears why they should have been disregarded. But even in the absence of rules, after the business has been distributed by an order of court concurred in by all the judges, such order should be held binding until revoked or modified by the same authority which made it. In this way only may an unseemly conflict of authority be avoided. But this is somewhat of a digression.

The particular ground of the present application is that Judge Donlan lost jurisdiction because of the filing of the affidavit imputing bias and prejudice by reason of which the relators could not have a fair trial of the issues presented by the motion, or of any matter in the course of the administration.

Two questions, therefore, arise for decision: (1) Does section 180, as amended, apply to probate proceedings? And (2) was the affidavit filed in time to disqualify Judge Donlan from proceeding to a conclusion of the particular matter under consideration?

The contention is made by respondents that the amended section has no application to probate proceedings. This view is based upon the fact that the probate practice act contains a specific provision declaring the disqualifications of district judges in probate matters (section 2530, tit. 12, art. 9, pt. 3, as amended by the act of 1897, Laws 1897, p 244), which, it is said, is exclusive, since that same title also declares (section 2920) that, "except as otherwise provided in this title, the provisions of part II of this Code are applicable to and constitute the rules of practice in the proceedings mentioned in this title." It is argued that these provisions, by mention of part 2. thereby exclude the notion that part 1 has any application, and, of course, that since section 180, as amended by the act of 1903 (Laws 1903 [2d Ex. Sess.] p. 9), is found in part 1, it can have no application. This argument involves the assumption that the four Codes and their various parts and titles are separate and independent acts, each dealing with a particular subject-matter, and that the provisions of a particular part or title have nothing to do with any other part or title, unless it be so expressly declared in the one or the other. This view cannot be sustained. For the purpose of convenience, the enactments of the Legislature were compiled by the commission in separate Codes, parts, titles, articles and chapters; but all were intended to be taken together as a whole, constituting a complete, consistent, and harmonious system. The Code of Civil Procedure was intended to be a complete system of practice and procedure, and to apply to every character of action or proceeding which might be brought in any court, and, except where special provisions are made in the particular part or title, the general provisions of part 2 relating to civil actions apply, in so far as they are suitable. Where they cannot apply, and specific provisions are not made, then the courts are to be governed by the practice and procedure at common law, for the common law is the rule of decision in this state, except in so far as it is repugnant to the Constitution of the United States and of this state, or of the provisions of these Codes. Pol. Code, § 5162. Doubtless section 2920, supra, was enacted for the purpose of fixing definitely the practice and procedure in probate...