William's Estate, In re

• Decision Date: 09 February 1956
• Docket Number: No. 33574,33574
• Citation: 48 Wn.2d 313,293 P.2d 392
• Court: Washington Supreme Court
• Parties: In re Martha WILLIAMS' ESTATE. STATE of Washington, on the relation of H. M. WILLIAMS, Relator, v. The SUPERIOR COURT of the State of Washington FOR WHITMAN COUNTY, the Honorable John D. Evans, Judge thereof, Respondent.

Page 313

48 Wn.2d 313

293 P.2d 392

In re Martha WILLIAMS' ESTATE STATE of Washington, on the relation of H. M. WILLIAMS, Relator, v. The SUPERIOR COURT of the State of Washington FOR WHITMAN COUNTY, the Honorable John D. Evans, Judge thereof, Respondent.

No. 33574.

Supreme Court of Washington, Department 1.

Feb. 9, 1956.

Harvey Erickson, Frank R. Freeman, Spokane, James Henry Felton, Lewiston, Idaho, for relator.

Don Sheahan, Rosalia, Philip H. Fairs, Colfax, for respondent.

HAMLEY, Chief Justice.

This is an application for a writ of prohibition to restrain the Honorable John D. Evans, as judge of the superior court for Whitman county, Washington, from functioning in a certain will contest proceeding in disregard of an affidavit of prejudice.

It is undisputed that, prior to the time the affidavit of prejudice was filed and called to Judge Evans' attention, he had granted an oral application by relator's counsel requesting that an out-of-state attorney of Lewiston, Idaho, be associated as an attorney of record. Judge Evans determined that, because of this circumstance, it must be held that the affidavit had not been timely filed and called to his attention, and was therefore without legal effect.

The applicable part of the statute pertaining to affidavits of prejudice, RCW 4.12.050, cf. Rem.Supp.1941, § 209-2, reads as follows:

'Such motion and affidavit must be filed and called to the attention of the judge before he has made any ruling whatsoever in the case, either on the motion of the party making the affidavit, or on the motion of any other party to the action, of the hearing of which the party making the affidavit has been given notice, and before the judge presiding has made any order or ruling involving discretion; but the arrangement of the calendar, the setting of an action, motion, or proceeding down for hearing or trial, the arraignment of the accused in a criminal action, or the fixing of bail, shall not be construed as a ruling or order involving discretion; and in any event, in counties where there is but one resident judge, the motion and affidavit shall be filed not later than the day on which the case is called to be set for trial.' (Italics supplied.)

The application to associate an out-of-state attorney was made and granted pursuant to Rule 22, Revised Rules for Admission to Practice, 34A Wash.2d May 1955 Supp. p. 36 (now Rule 7, Rules for Admission to Practice, 148 Wash.Dec. No. 1, p. xvii). The pertinent part of this rule reads as follows:

'No person shall appear as attorney or counsel in any of the courts of this state, unless he is an active member of the state bar: Provided, That a member in good standing of the bar of any other state may, with permission of the court, appear as counsel in the trial of an action or proceeding in association only with an active member of the state bar, who shall be the attorney of record therein and responsible for the conduct thereof.

'Application to appear as such counsel shall be made to the court before whom the action or proceeding in which it is desired to appear as counsel is pending. The application shall be heard by the court after such notice to the adverse parties as the court shall direct; and an order granting or rejecting the application made, and if rejected, the court shall state the reasons therefor. * * *'

In our view, the granting of permission to an out-of-state lawyer to participate in a case, pursuant to the provisions of Rule 22, is an exercise of discretion within the meaning of the quoted statute. It is none the less so because the rule requires the court, in the event of rejection, to state the reasons therefor.

It is true, as relator argues, that applications to permit out-of-state lawyers to participate in a trial are usually granted as a matter of comity and courtesy. This is particularly so where, as here, the out-of-state lawyer practices in a nearby city of an adjoining state. These circumstances may have a bearing upon the question of whether...