State v. Superior Court of Lewis County

• Decision Date: 16 April 1919
• Docket Number: 15282.
• Court: Washington Supreme Court
• Parties: STATE ex rel. DUNHAM et al. v. SUPERIOR COURT OF LEWIS COUNTY et al.

180 P. 481

106 Wash. 507

STATE ex rel. DUNHAM et al. v. SUPERIOR COURT OF LEWIS COUNTY et al.

No. 15282.

Supreme Court of Washington

April 16, 1919

Department 2.

Mandamus by the State of Washington, on the relation of S.W. Dunham and others, against the Superior Court of Lewis County; W. A Reynolds, Judge. Writ to issue.

W. W Langhorne and S. C. White, both of Chehalis, for respondents.

CHADWICK C.J.

Relators brought this proceeding to compel respondent to make an order transferring an action, in which the relators are made defendants and one Joe Lapinskie is plaintiff, to some other judge for hearing.

The original action was begun in Lewis county on or about the 1st day of February, 1919. On the 6th day of February, 1919, the defendants moved to make the complaint more definite and certain. This motion was noticed for hearing on the 17th day of February. On the 17th day of February the attorney for the defendants made affidavit that he, the attorney, was informed and believed that the respondent herein and before whom the said cause was pending was prejudiced against the defendants and that they, the defendants, could not have a fair and impartial trial before respondent, and moved the court that another judge be called to try the case. On the 17th day of February the respondent judge was not present in court, being engaged in another county. He returned to Lewis county on the 18th day of February, whereupon counsel for the defendants presented his motion for a change of judges, and it was so ordered by the respondent. No notice of the filling of the motion or of the time for hearing was served upon the plaintiff or the attorneys in the original action. It coming to the notice of counsel that an order had been made, they filed a motion to vacate the order for a change of judges. The motion was noticed, and after hearing counsel the court vacated and set aside the order. At the time of the hearing counsel for the relators filed another motion, which was accompanied by the affidavit of the relators setting up the prejudice of the judge. This motion and the motion to make more definite and certain came on for hearing, and were each overruled by the court, whereupon counsel for the defendants in the original action came to this court, praying for a writ of mandamus to compel the respondent to call another judge or to transfer the action.

The order made on the 18th day of February was properly vacated. It was entered without notice. So that the only question left for us to decide is whether it was thereafter properly overruled.

If we understand the contentions of counsel for respondent, the motion was overruled because the affidavit of prejudice was made by the attorney, and not by the defendants in their own behalf, and for the further reason that defendants, having filed a motion to make the complaint more definite and certain, had submitted themselves to the jurisdiction of the court.

While the statute (Rem. Code, §§ 209-1, 209-2) has been and will continue to be abused, it is a remedial statute, and must be liberally construed.

'We have frequently held that, upon a showing seasonably made in compliance with the statute, a moving party is entitled to a change of judges as a matter of right.' State ex rel. Russell v. Superior Court, 77 Wash. 631, 138 P. 291.

When considered in the light of its object we find nothing in the statute that would preclude an attorney from making an affidavit of prejudice. The statute provides that:

'No judge shall sit to hear or try any action or proceeding when it shall be established, as hereinafter provided, that such judge is prejudiced against any party or attorney.'

The after provisions of the statute are:

'Any party to or any attorney appearing in any action or proceeding in a superior court, may establish such prejudice by motion supported by affidavit that the judge before whom the action is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge.'

We think the statute clearly contemplates that the affidavit may be made by the attorney or by the party, whichever it may be who has knowledge of the fact or who is willing to affirm a belief that a fair and impartial trial cannot be had before the presiding judge. The affidavit was made by counsel without challenge on that account in Garvey v. Skamser, 69 Wash. 259, 124 P. 688.

It is also claimed on behalf of the respondent that the affidavit is insufficient, in that facts showing prejudice are not set out, and that the first motion--and which we are inclined to consider as controlling--is made on information and belief. Emphasis is put upon the word 'established,' and it is contended that the facts showing prejudice should be set out. The statute does provide that no judge shall sit to hear or try a case when it is 'established' that such judge is prejudiced, but it also provides that the fact of prejudice may be established 'as hereinafter provided.' It is provided that any party or any attorney may establish such prejudice by affidavit stating that the judge before whom the cause is pending is prejudiced, or that the affiant believes that a fair and impartial trial cannot be had before such judge.

'The prejudice spoken of in the act, as we construe the statute, is a personal prejudice against the litigant or his attorney, and if the litigant or his attorney believes that such prejudice exists, no matter whether there is any foundation for the belief or not, the writ must be granted under the provisions of the statute.' State ex rel. Lefebvore v. Clifford, 65 Wash. 313, 118 P. 40.

An affidavit on information and belief is within the statute which permits a showing of no more than a belief that a fair and impartial trial cannot be had. Garvey v Skamser, 69 Wash. 259, 124...