Washakie Livestock Co. v. Meigh

• Decision Date: 19 June 1934
• Docket Number: 1840
• Citation: 33 P.2d 922,47 Wyo. 161
• Parties: WASHAKIE LIVESTOCK COMPANY v. BOB MEIGH et al
• Court: Wyoming Supreme Court

33 P.2d 922

47 Wyo. 161

WASHAKIE LIVESTOCK COMPANY v. BOB MEIGH et al

No. 1840

Supreme Court of Wyoming

June 19, 1934

APPEAL from the District Court, Fremont County; E. H. FOURT, Judge.

Action by Washakie Livestock Company, a corporation, against Bob Meigh and others, in which plaintiff filed an affidavit for change of judge. From a judgment rendered by the same judge after the filing of plaintiff's affidavit of disqualification, plaintiff appeals.

Reversed.

For the plaintiff and appellant, there was a brief by C. H. Harkins and D. J. Harkins of Worland, and H. S. Harnsberger of Lander, and oral argument by Mr. Harkins.

The court erred in overruling plaintiff's demurrer to the affirmative defense, counter-claim and cross-petition of defendant's named in the demurrer. Said order was made on January 25, and entered January 26, 1933. On January 26 1933, an affidavit and motion for change of judge were filed by plaintiff in proper form under the provisions of Section 89-1101, R. S. 1931. Thereafter and on January 31, 1933, the same judge made an order setting aside his order of January 25, and denying plaintiff's motion for a change of judge. The same judge made subsequent orders in the case on February 1 and rendered a judgment in the case on March 14, 1933. Said judge was without jurisdiction to do anything further in the case after the filing of an affidavit of disqualification except to make an order assigning said cause to and for trial by some other district judge of the state. It is respectfully submitted that Judge Fourt was without jurisdiction or right to try the case in the first place, and the judgment therein should be vacated and set aside with directions that another district judge be called in to sit in the case in accordance with the statute.

For the defendants and respondents, there was a brief by R. H. Nichols and Wm. B. Cobb of Casper and oral argument by Mr. Cobb.

Section 89-1101, R. S. 1931 provides for the disqualification of a judge by the filing of an affidavit of bias not less than five (5) days before the trial. Plaintiff was seeking to delay the time of trial. On January 25, 1933, the court by its order, assigned the cause for trial on January 30, at ten o'clock A. M., according defendants time until January 30, within which to further plead to defendant's cross-petition. On January 26, 1933, the affidavit of bias was filed for a change of Judge. This affidavit and motion for a change of judge having been filed less than five (5) days before the date set for trial was too late. The facts concerning the attempted disqualification of Judge Fourt are set forth in the affidavit of the attorney who appeared in the trial court for the cross-petitioning defendants. That affidavit is not controverted, and based upon it, the court entered the order of January 31, 1933, which correctly states the situation as it was on January 5, 1933. The attempted disqualification of the trial judge was out of time and therefore the trial judge properly proceeded to try the cause.

RINER, Justice. KIMBALL, CH. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This proceeding by direct appeal brings a judgment of the District Court of Fremont County here for review.

On November 29, 1932, the Washakie Livestock Loan Company, a Wyoming corporation, hereinafter usually mentioned as the "plaintiff," and now the appellant in this record, brought an action of replevin in the district court, aforesaid, against Bob Meigh, Meigh Livestock Company, a corporation, Adolph Martinez, Alfred Snyder, Henry Gomez, Moses Apodoca, Harvey Mann, Felix Dezwell, Trinidad Reyes, and Ricardo Montoya, as defendants, now the respondents, claiming possession of certain livestock and personal property under the terms of the mortgage given it by the defendant Bob Meigh, and alleging that the defendants wrongfully detained said property from it. In due course, the property aforesaid, under the several procedural steps in replevin, was turned over to the plaintiff. On December 30th following, the defendants Bob Meigh and Meigh Livestock Company each filed their separate answers in the action, and, on that date, the remaining defendants, Martinez et al., subsequently mentioned herein as the "lien claimants," also filed their counter-claim, cross petition, and joint and several answer to the plaintiff's petition, asserting--to indicate their claim briefly--a lien or liens in the total sum of $ 4636.29 upon the property aforesaid, on account of herding services performed and expenses incurred by them relative to it, through contracts made by them with the mortgagor of said property, and also demanding $ 5000 damages for the alleged wrongful taking of the property under the replevin action, together with an attorney's fee of $ 500. January 7, 1933, Bob Meigh and the Meigh Livestock Company filed a joint answer to this pleading of the lien claimants, admitting all its allegations. Thereafter and on January 14, 1933, the plaintiff filed a demurrer to the lien claimants' pleading, challenging it as not stating facts sufficient to entitle the defendants or any of them to the relief demanded, and, also, that the counter-claim pleaded was not of the character specified in section 89-1016, Wyo. Rev. St. 1931.

On January 25, 1933, an order was made by the court which, after reciting that the cause was heard upon the plaintiff's demurrer above described, concludes in the following language:

"IT IS ORDERED that said demurrer be, and the same is hereby overruled. To which ruling of the Court the plaintiff, Washakie Livestock Loan Company, a corporation, excepts and which exception was by the Court allowed.

"Whereupon the plaintiff was given to and including the 30th day of January, A. D. 1933, within which to answer the separate answer, affirmative defense, counter-claim and cross-petition, of the within named defendants.

"Done in open Court this 25th day of January, A. D. 1933."

The order form was dated as indicated, was signed by the presiding district judge, was filed in the office of the clerk on the succeeding day, and on that day, Thursday, January 26, 1933, the 31st day of the term, was entered in the journal of the court. The same day, plaintiff through its counsel, filed in the cause an affidavit for a change of judge, as prescribed in section 89-1101, Wyo. Rev. St. 1931, which, so far as here material, reads:

"Whenever either party to a civil action in any district court of the state shall file an affidavit in the case, stating one or more of the following causes: * * *

"That the person making the affidavit believes that on account of the bias, or prejudice, or interest of the presiding judge he cannot obtain a fair trial;

"In either case the court in term or the judge in vacation shall, within ten days after filing such affidavit, make and enter an order * * * calling on some other judge of the district court of the state to preside in the trial of the case as hereinafter provided."

Section 89-1104, as it bears upon the matter here involved, provides: "that if a change of judge shall be desired by either party, the affidavit required by law and the motion for a change of judge shall be filed not less than five days before trial." There was incorporated in said affidavit a motion by counsel for an order of the court, "referring the above entitled matter to one of the other district judges of the State of Wyoming for all further and final disposition therein."

On January 30, 1933, the plaintiff filed its answer to the pleading of the lien claimants. The following day an order was made by the court which, after reciting that the cause came on to be heard on "this 25th day of January, 1933," upon plaintiff's demurrer to the aforesaid pleading of the lien claimants, the representation of the parties by counsel, the fact of their being heard in the matter, and the due advisement of the court continues as follows:

"IT IS ORDERED that said demurrer be and the same is hereby overruled. To which order and ruling of the Court plaintiff, by and through its counsel, objects and exception is allowed, and

"IT IS FURTHER ORDERED that this cause be and the same is hereby set for trial for the 30th day of January, 1933, at the hour of ten o'clock in the forenoon or as soon thereafter as the cause can be heard on said day, and plaintiff is now given to and until said 30th day of January, 1933, at the hour of ten o'clock in the forenoon within which to file herein its Answer to the Separate Answer, Affirmative Defense, Counter-Claim and Cross-Petition of said named defendants, to which the plaintiff objects and excepts which exception is allowed.

"IT IS FURTHER ORDERED that the order filed herein on January 26th, 1933, and relating to the overruling of the plaintiff's demurrer be and the same is hereby vacated and set aside and that this order be and the same is hereby substituted therefor, to which the plaintiff objects and excepts which exception is allowed.

"DONE IN OPEN COURT this 31st day of January, 1933."

The order form was dated as above recited, was signed by the presiding judge, was filed by the clerk that day, and that day, Tuesday, the 33rd day of the term, was entered in the journal of the court.

On January 31, 1933, the court also made another order duly entered on that day on the journal, which, after reciting that the cause was heard upon the plaintiff's affidavit and motion for change of judge, the representation of the parties by counsel, and the fact of their being heard, uses the following language:

"IT IS HEREBY ORDERED that the motion for change of judge filed on the 26th day of January A. D. 1933, and within less than five days of the date of trial heretofore fixed in this cause be and the same is...