Huhn v. Quinn

Scott, Justice.

On March 11, 1911, the defendant in error as plaintiff filed his petition in the District Court of Johnson County seeking to recover from the plaintiff in error as defendant the sum of $2,692.75, with interest alleged to be due on a promissory note, and on two separate accounts for money loaned to the defendant upon his request. Summons was duly issued and served on March 13th, as appears from the return thereon and filed in the office of the clerk of that court on March 15, 1911. The time for filing an answer expired on April 8, 1911. On September 25th following, the defendant, without having obtained leave so to do, filed his answer consisting of a general denial. On October 2, 1911, *56 the defendant filed an affidavit which, omitting the formal parts, is as follows :

“William Huhn being first duly sworn on oath states, that he is the defendant in the above entitled cause. Affiant further says he believes that on account of the bias and prejudice of the presiding judge of this court he cannot obtain a fair trial. Wherefore, defendant respectfully asks that another judge of the District Courts of this state be called to preside at the trial of said cause. Further affiant sayeth not.”

On October 3, 1911, or the next day after the filing of said affidavit, the plaintiff (Quinn), filed a motion to strike the answer from the files for the reason that it was filed without leave of court ánd not within the tim^ required by law. On the same day this motion was presented to and sustained by the court, both parties being represented by counsel, and the answer was stricken from the files and permission was given to the defendant to make an application for permission to file an answer upon a showing by affidavit of a good and sufficient reason for not filing his answer within the time allowed by law. Thereupon and on the same day the defendant applied to the court for permission to file and tendered an amended answer and supported his application by affidavits and the plaintiff resisted said application and filed counter affidavits. Upon hearing the court denied said application, whereupon the defendant’s attorney called the court’s' attention to the affidavit for a change of judge which had been filed the’day .preceding, and withdrew his application to file an amended answer and insisted on his right to have another judge called in to try the case. The court thereupon vacated so much of the order authorizing the presentation for filing of an amended answer, such application to be supported by affidavits showing good cause for not answering within the time allowed by law. The order of the court recites that the affidavit for change of judge was then for the first time presented tO' the court and the case was thereupon, over the defendant’s. *57 objection, referred to the Hon. S. C. Langworthy, Court Commissioner in and for the District Court of the County of Johnson, who was thereupon called to hear, try and .determine the cause which was set for trial in open court before said commissioner at the court house in the city of Buffalo and County of Johnson, at two o’clock p. m. on the 4th day of October, 1911, at which time the following proceedings as shown by the journal entry were had, viz“And now on this October 4, 1911, came on the above entitled matter to be heard before the court without a jury, the Honorable S. C. Langworthy, District Court Commissioner of Johnson County, Wyoming, presiding, pursuant to an order of this court, made and entered this October 4, 1911', directing the said District Court Commissioner to hear, try and determine the issues in this casethe plaintiff appearing in person and by Hill and Griggs, his attorneys, the defendant making no appearance herein.

“And the said court having heard the evidence, and being now fully advised in the premises, does find that there is due from the defendant to the plaintiff the sum of fifteen hundred dollars principal, and five hundred seventy-five dollars interest to the first day of the present term of this court upon'a certain promissory-note given to the plaintiff by said defendánt, as alleged in said petition; that there is likewise due from the defendant to the plaintiff the sum of five hundred dollars principal .and fifty-three and 33/100 dollars interest on account of the loan made by plaintiff to defendant as alleged in the second cause of action of plaintiff’s, petition; and that there is likewise due the sum of two hundred dollars principal and twenty-one and 33/100 dollars interest on account of the loan mentioned in plaintiff’s third cause of action; whereby the said court, the said commissioner presiding, finds that there is due and owing from the defendant to the plaintiff, on account of the above matters, on the first day of the present term of this court the entire sum of two thousand eight hundred forty-nine and 66/100 dollars, no part whereof has been paid.

*58 ' "Wherefore, it is hereby' determined by the said court, said commissioner presiding, that the said Ned Quinn, plaintiff herein, should have and recover judgment of and against the said William Huhn, defendant herein, for the sum of two thousand eight hundred forty-nine and 66/100 dollars, together with his costs herein expended, taxed at $21.70.

“Done in open court. S. C.'Langworthy,

“District Court Commissioner.”

And on the same day the court entered the following judgment:

“And now on this October 4, 1911, came on the above matter to' be heard upon the report and determination of the Honorable S. C. Langworthy, District Court Commissioner, and the court having read said report and determination, and being now fully advised in the premises, hereby approves the same, and said report is in all respects confirmed..

“Wherefore.it is hereby ordered and adjudged by the court that Ned Quinn, plaintiff herein, have and recover judgment against the defendant, William Huhn, for the sum of two thousand eight hundred forty-nine and 66/100 dollars, together with his costs herein expended, taxed at $21.70, including $10 fees for the Court Commissioner, which is hereby allowed and directed to be taxed.

“Done in open court: C. H. ParmelEE, Judge.”

The affidavit for change of judge was sufficient to divest the presiding judge of further jurisdiction other than to call in another District Judge of the state to preside in the trial of the case, as provided by Sec. 5142, Comp. Stat., which, in so far as applicable to the question here, is as follows: “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: * * * "3. 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. * * * The court in term or the judge in vacation shall * * * call on some other *59 judge of the District Courts of the state to preside' in the trial of the case, as hereinafter provided.”

The subsequent provision thus referred to in the section is found in Section 5144 and is as follows: “That when the application is based on the first, second, third and sixth subdivisions of Sec. 5142, the judge shall call upon some other judge of the District Courts of the state to preside in the trial of the said cause, who shall proceed in the case as if it had originally been brought before him.” These provisions were in force prior to the adoption of the constitution and have ever since been and are now in force (R. S. 1887, Sec. 3400; R. S. 1899, Sec. 4282) just as they appear in Secs. 5142 and 5144 as above quoted. Sec. 14, Art. V, of the constitution is as follows: “The Legislature shall provide by law for the appointment by the several District Courts of one or more District Court Commissioners (who shall be persons learned in the law) in each organized county in which a District Court is holden, such commissioners shall have authority to perform such chamber business in the absence of the District Judge from the county or upon his written statement filed with the papers, that it is improper for him to act, as may be prescribed by law, to take depositions and perform such other duties, and receive such compensation as shall be prescribed by law.” By Chap. 115, Laws of 1895, which appears as Chap. 75, Comp. Stat. 19x0, provision was made for the appointment and qualification of District Court Commissioners, and Section 6 of the original act, appearing as Section 922, Comp. Stat. 1910, defines the powers of such officer, among which subdivision 4 of the section is as follows: “To hear, try and determine all issues whenever an application shall have been made for a change of judge.”

It will be observed that Sec. 14, Art. V, of the constitution, supra, confers upon a District Court Commissioner the power of a judge in chambers under certain named conditions. This' ,we think limits the power of .the commissioner as a subordinate officer of the court and as to causes pending *60 therein to such proceedings, orders or business as might be conducted before, or made or attended to by the judge at chambers. Such power does not include, the trial of a case on its merits, but is among those “which are exercised in preliminary, intermediate or ex parte matters not involving the merits of a cause — powers which may be exercised by a judge out of term, acting as a judge merely and not as a court.” (11 Cyc. 623, 624; Prignitz v. Fisher, 4 Minn. 366 ( Gil. 275 ) ; Pulver v. Grooves, 3 Minn. 359 ( Gil. 252 ), Cushman v. Johnson, 13 How. Pr. (N. Y.) 495.) It should be borne in mind that “a judge at chambers is simply a judge acting out of court.” (23 Cyc. 505.)

In the case here the Court Commissioner was not acting in chambers, but presided at the trial and made and entered findings in open court and as an act of the court. The provision of Section 14, Art. V, of the constitution, supra, authorizing the Court Commissioner “to take depositions and perform such other duties * * * as shall be prescribed by law,” was clearly, we think, not intended to confer upon that officer the power of a judge to preside in the trial of cases in open court. Sec. 11 of Art. V of the constitution provides that “The judges of the District Courts may hold courts for each other and'shall do so when required by law,” and Section 12, following, provides that “No person shall be eligible to the office of judge of the District Court * * * unless he be at least twenty-eight years of age, * * * nor unless he shall have resided iq the State or Territory of Wyoming at least two years next preceding his election.” Sec. 5142, Comp. Stat., supra, is mandatory in terms and is in line with the constitutional provisions which construed together contemplate that no one shall be qualified to preside over a District Court except a District Judge. The commissioner as to matters pending in the court is a subordinate officer of the court. He is not a District Judge who alone possesses the power to preside over á District Court. There can be no such court in the absence of a qualified judge de facto or de jure. The Court *61 Commissioner is neither. The provision of Sec. 922, supra, that he may hear, try and determine all issues whenever an application shall have been made for a change of judge, when properly construed, does not attempt to authorize the commissioner to try the issues in the case itself, but only the issues, if any, arising upon the application for a change of judge. Whether the Legislature may confer upon the commissioner the power to hear such an application and determine whether or not it shall be granted need not be decided, for in this case the commissioner did not preside’ in the cause for that purpose. He was called in to hear and try the case. In Michigan, under a somewhat similar constitutional provision, it is held that a statute may authorize the commissioner to direct a change of venue applied for on the ground that the judge is disqualified. (Whipple v. Judge &c., 26 Mich. 342 ; Fellows v. Canney, 75 Mich. 445 , 42 N. W. 958 ; Grostick v. Railroad Co., 96 Mich. 495 , 56 N. W. 24 .) When the application for change of judge has been made, which includes the filing thereof and calling the attention of the court or judge thereto, the judge becomes thereby divested of authority in the premises, except to act upon the application, grant it if properly made, and call upon some other of the District Judges of the state to preside in the further proceedings and trial of the case. In ' this case the application would seem to have been granted, but another District Judge was not called in as the statute requires. The application appearing to have been properly made, the judge was disqualified to further act in the case except as provided in Sections 5142 and 5144, Comp. Stat.,, supra.

We, therefore, hold that the Court Commissioner was without the power which he attempted to exercise, that the court erred in calling upon him- to try the case instead of calling in one of the District Judges of the state' .to preside in the trial of the case as provided by Sections 5142 and 5144, Comp. Stat., and that for such error the Judgment must be reversed and the cause remanded for such further *62 proceedings as may be proper, not inconsistent with the views herein expressed. Reversed.

Beard, C. J., and Potter, J., concur.