State v. Fifth Judicial Dist. Court in and for Nye County

• Decision Date: 02 December 1931
• Docket Number: 2958.
• Parties: STATE ex rel. BEACH v. FIFTH JUDICIAL DISTRICT COURT IN AND FOR NYE COUNTY et al.
• Court: Nevada Supreme Court

5 P.2d 535

53 Nev. 444

STATE ex rel. BEACH v. FIFTH JUDICIAL DISTRICT COURT IN AND FOR NYE COUNTY et al.

No. 2958.

Supreme Court of Nevada

December 2, 1931

Original proceeding in mandamus by the State, on the relation of Kay H. Beach, against the Fifth Judicial District Court in and for Nye county, and Hon. J. Emmett Walsh, Judge of said court.

Decision in accordance with opinion.

W Howard Gray, of Tonopah, and Wm. McKnight, of Reno, for petitioner.

A. L Haight, of Fallon, and Harwood & Diskin, of Reno, for respondents.

PER CURIAM.

On March 25, 1931, our Legislature approved an act entitled "An Act to amend an act entitled 'An act concerning the courts of justice of this state and judicial officers,' approved January 26, 1865, as amended, by amending section 45 thereof and by adding two additional sections to said act, to be known as sections 45a and 45b." Stats. 1931, p. 247, c. 153.

The amended portion of section 45 reads as follows:

"A judge shall not act as such in an action or proceeding: ***

Fifth, if either party to a civil action in the district court or his or its attorney or agent shall file an affidavit alleging that the affiant has cause to believe and does believe that on account of the bias or prejudice or interest of said judge he cannot obtain a fair and impartial trial the said judge shall at once transfer the action to some other department of the court, if there be more than one department of said court in said district, or request the judge of some other district court of some other district to preside at the hearing and trial of such action; provided the party filing such affidavit for change of judge shall at time of filing same pay to the clerk of the court in which such affidavit is filed the sum of twenty-five dollars, which sum shall be by the clerk transmitted to the state treasurer, who shall place the same to the credit of the district judges' traveling expense fund. ***"

Section 2 provides that:

"An act entitled 'An act concerning the courts of justice of this state and judicial officers.' approved January 26, 1865, as amended, is hereby amended by adding an additional section, to be known as section 45a, which section shall read as follows:

Section 45a. No judge or court shall punish for contempt anyone making, filing or presenting such affidavit or motion founded thereon."

Section 3 provides that:

"An act entitled 'An act concerning the courts of justice of this state and judicial officers,' approved January 26, 1865, as amended, is hereby amended by adding an additional section to be known as section 45b, which section shall read as follows:

Section 45b. Not more than one change of judge may be granted in any action, but each party shall be heard to urge his objections to any judge in the first instance, and the change of judge shall be to the most convenient judge to which the objections of the parties do not apply or are least applicable. If the parties agree upon a judge then such judge shall be selected." (The italics are ours.)

This is the first case to arise in this court under the statute. The case is in mandamus, and is to be regarded as one to determine the validity of the above-quoted provisions of the statute and to settle the practice for this and similar cases.

The facts, omitting dates and details, are, in brief, as follows: Hon. J. Emmett Walsh is judge of the Fifth judicial district court of this state, Hon. H. W. Edwards is judge of the Ninth judicial district, and Hon. Clark J. Guild is judge of the Eighth judicial district.

H. W. Sawyer, as administrator of the estate of Silverino Penelas, deceased, instituted an action in said Fifth judicial district court in and for Nye county against Kay H. Beach and Ole Peterson, to have plaintiff's title quieted to certain unpatented lode mining claims and for injunctive relief against the defendants. The defendants appeared and filed a demurrer to the complaint. Thereafter, on motion of the plaintiff and after a hearing, the court made an order restraining the defendants from doing any of the acts and things complained of in the complaint pendente lite. Thereupon the defendant Kay H. Beach made and caused to be filed in said cause an affidavit stating that he had cause to believe and did believe that on account of bias and/or prejudice of the Hon. J. Emmett Walsh, judge of said Fifth judicial district court, he could not obtain a fair and impartial trial of the action. The parties, through their attorneys of record, and in accordance with the authorization of the statute, orally agreed that the Hon. H. W. Edwards be selected as the judge to preside at the hearing and trial of the cause. Upon the presentation of the affidavit and said agreement to the Hon. J. Emmett Walsh, as judge of said Fifth judicial district court, an order was entered assigning the case for trial to the Hon. Clark J. Guild, judge of the Eighth judicial district. Counsel for the defendants urged objections to the assignment of the case to Judge Guild, and counsel for both parties joined in the request that the order of assignment be modified by substituting H. W. Edwards as the judge to preside at the hearing and trial of the action. This Judge Walsh declined and refused to do.

Thereafter Kay H. Beach petitioned this court for a writ of mandamus to issue against Judge Walsh commanding him to vacate his order assigning the case to Judge Guild and to compel him to assign the same to Judge Edwards for trial. Upon consideration of the petition, this court issued an order directed to Judge Walsh commanding him to vacate his order of assignment, or show cause before this court why he had not done so. In response to the order, Judge Walsh demurred to the relator's petition and filed an answer, which was traversed by the petitioner.

The demurrer raises the question of the constitutionality of the statute and the further question of whether mandamus is the proper remedy. As to the former question, the respondent judge contends that a law which provides that the mere filing of an affidavit charging bias and/or prejudice is sufficient to disqualify a judge without a hearing or determination of whether the affidavit is true or false is unconstitutional, as depriving the court of judicial power and vesting the same in the litigants to that extent.

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