Washoe Copper Co. v. Hickey

• Decision Date: 18 November 1912
• Citation: 128 P. 584,46 Mont. 363
• Parties: WASHOE COPPER CO. v. HICKEY ET AL.
• Court: Montana Supreme Court

128 P. 584

46 Mont. 363

WASHOE COPPER CO. v. HICKEY ET AL.

Supreme Court of Montana

November 18, 1912

Appeal from District Court, Silver Bow County; W. R. C. Stewart Judge.

Action by the Washoe Copper Company against Edward Hickey as administrator of Michael A. Hickey, deceased, and others. From a judgment for plaintiff, defendants appeal. Affirmed.

J. E Healy and John Lindsay, both of Butte, for appellants.

C. F Kelley, L. O. Evans, D. Gay Stivers, all of Butte, and W. B. Rodgers, of Anaconda, for respondent.

HOLLOWAY J.

For some time prior to September 16, 1912, this cause had been pending and at issue in department No. 1 of the district court of Silver Bow county, presided over by Judge Lynch. An affidavit disqualifying Judge Lynch under the provisions of subdivision 4 of section 6315, Revised Codes, was filed, and on September 16, 1912, this order was entered in the minutes of the court: "Washoe Copper Company, a Corporation, versus Edward Hickey, as Administrator, et al. This day it appearing to the court that the Hon. Jeremiah J. Lynch, judge of department 1 of this court, having been disqualified from trying this cause, and thereupon, by agreement of the respective counsel, the Hon. W. R. C. Stewart, judge of the Ninth judicial district, is by the court called in to try this cause, and the trial of this cause is by the court continued for hearing until Monday, October 2, 1911." On September 30th Daniel T. Lewis, one of defendants, filed an affidavit of disqualification against Judge Stewart under the provisions of the statute above. On October 2d, when Judge Stewart appeared in court for the trial of this cause, his attention was directed to the Lewis affidavit and also to the minute entry of September 16th, and then, over the objections of defendants, he proceeded with the trial. From a judgment in favor of plaintiff, the defendants appealed, and present for our determination the question, Had Judge Stewart authority to preside at the trial of this cause?

1. The filing of the Lewis affidavit ipso facto worked a disqualification of Judge Stewart unless the defendants had waived their statutory right to file such affidavit.

2. That the minute entry of September 16th correctly recites the facts is not controverted; but counsel for appellants insist that the entry does not disclose a waiver, and, if it does, public policy forbids its enforcement. When Judge Lynch was disqualified, he was authorized by the statute to call in any other district judge whom he might select. He was not under any obligation to consult the parties or their attorneys, but he had authority to call a particular judge upon whom counsel agreed, and this he did. So that, Judge Stewart having been rightfully called, the question presented to us arises upon a consideration of the agreement evidenced by the minute entry of September 16th.

3. That counsel for both parties agreed to try this cause before Judge Stewart does not admit of doubt. Upon any other theory, the language of the record is meaningless. Why should there be a recital that Judge Stewart was called by agreement of counsel? Such an agreement would not add anything if Judge Stewart was merely called in, subject to the same objections which might have been lodged against a judge who was called without the knowledge of the parties or their counsel. But Judge Stewart was not merely called into the case. He was called "to try the cause" by agreement of counsel.

4. The situation of a trial judge is somewhat similar to that of a juror. A litigant may exercise his challenge for cause as against the prospective juror, and may likewise disqualify the sitting judge for cause under the first three subdivisions of section 6315 above. But in either instance the particular ground of challenge must appear. To disqualify a judge under subdivision 4 above, the litigant is not required to state any facts upon which his claim of the judge's bias or prejudice is...