State ex rel. Lohman v. District Court

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

On August 26, 1913, A. S. Lohman commenced an action in the district court of the twelfth judicial district of Montana, in and for Blaine county, against the town of Chinook. A demurrer interposed by the defendant was submitted to the court, Judge Tattan presiding, and overruled, and an answer which brought the case to issue was then filed. On February 21, 1914, the court, Judge Utter presiding, set the cause for trial for March 21, at a term of the court to be presided over by Judge Utter. On February 28 plaintiff filed an affidavit disqualifying Judge Utter, and on March 2 an order was entered by the disqualified judge, calling Judge Tattan to try the ease, which was then reset for April 9. On April 3 plaintiff called up before Judge Utter his motion for change of venue, which motion had been filed on February 28, but the court overruled it, and this proceeding was thereupon instituted. In his affidavit, after reciting the history of the ease, the relator alleges that Judge Tattan did not appear in Blaine county or assume jurisdiction of the case of Lohman v. Town of Chinook for a period of thirty days after the motion for change of venue was filed, or at all. An alternative writ of mandate was issued, and upon the return Judge Utter, for himself and the court, presented an answer, in which he sets forth that, while *249 he and Judge Tattan are both judges of the twelfth judicial district, they have never apportioned the business between them, but have proceeded, by a sort of process of selection under which “each of said judges assumed to select and act in all cases which have not been theretofore selected by, or of which jurisdiction has not been assumed by, the other judge of said district”; that he never intentionally assumed jurisdiction in the case of Lohman v. Town of Chinook, but through inadvertence only he set it for trial; that by considering and passing upon the demurrer Judge Tattan had selected and apportioned to himself that case as a part of the business to be transacted by him while presiding in the court in Blaine county; that at the time this case was set for trial, and at the time he called Judge Tattan to try it, he was not aware that Judgé Tattan had already assumed control over this case; that Judge Tattan has not been disqualified, and for the reason the cause is pending before Judge Tattan, he deemed himself without authority to grant the motion of the relator herein for a change of venue. Upon the hearing, certain records were introduced in evidence and the proceeding submitted for our determination.

Counsel for respondents have not submitted any briefs or written argument; but in the answer filed certain questions are sought to be raised, and these will be treated in their order.

1. It was not necessary for the plaintiff (this relator), when [1] he filed the disqualifying affidavit or the motion for change of venue under the provisions of section 6315, Kevised Codes, as amended by Chapter 114, Laws of 1909, to give notice to his adversary. (State ex rel. Jenkins v. District Court, 32 Mont. 595 , 81 Pac. 351 .)

2. The date of the disqualifying affidavit is not of eonse [2] quence. It is the filing of the affidavit which ipso facto works the disqualification of the judge. (Washoe Copper Co. v. Hickey, 46 Mont. 363 , 128 Pac. 584 ; State ex rel. Goodman v. District Court, 46 Mont. 492 , 128 Pac. 913 .)

3. Judge Utter’s position that he was without authority to grant the motion for a change of venue is not well taken. The *250 evidence introduced discloses that the business of the twelfth [3] judicial district has been apportioned between the two judges by a stipulation entered into between them. That arrangement did not confer upon either exclusive control over any particular case from its inception in court until its conclusion. It provided that these judges should alternately hold terms of court in Blaine county, and it left either judge with authority to do any and everything, in any case pending in that court, which could properly be brought before the court. It clearly contemplated that one judge might settle the pleadings and the other try a given case. The arrangement was apparently satisfactory to both judges, and both are bound by it until it is changed. The fact that Judge Tattan heard the demurrer did not operate to devest Judge Utter of authority to try the cause, or to change the place of trial after he was disqualified. The district court of the twelfth judicial district in and for Blaine county had jurisdiction of the case of Lohman v. Town of Chinook, and while presiding in that court Judge Utter had all the authority which is conferred upon any district judge of this state. He was bound to know what proceedings had been taken in the case, and it is immaterial that the setting of the ease by him was an act of inadvertence. It was his duty to set it for trial if it was ready for trial at a term at which he was to preside, and to try it unless he was disqualified. There is some conflict between the records of the court made while Judge Utter was presiding therein and his verified answer in this proceeding, but it is not of sufficient consequence to deserve special attention.

4. When Judge Utter was disqualified by the filing of the [4] affidavit, it was his duty to call in Judge Tattan to try the cause (Chap. 114, Laws 1909, above), but as such invited judge only, Judge Tattan could not be compelled to respond to the invitation. (State ex rel. Anaconda C. Min. Co. v. Clancy, 30 Mont. 529 , 77 Pac. 312 .) If he failed to appear and assume jurisdiction of the case within thirty days after the motion for change of venue was filed, then it became the duty of Judge Utter to exercise the power still reserved to him by *251 the statute above, and change the place of trial. (Rev. Codes, sec. 6506; State ex rel. Anaconda C. Min. Co. v. Clancy, above; State ex rel. Carleton v. District Court, 33 Mont. 138 , 8 Ann. Cas. 752, 82 Pac. 789 .) Section 6506 above, and section 6315 as amended, are companion measures. Section 6506 provides the means by which a litigant may secure a speedy trial of his cause in the event the presiding judge is disqualified under the other section. (State ex rel. Boston & Mont. etc. Co. v. Clancy, 30 Mont. 193 , 76 Pac. 10 .) The amendment made to section 6315 by Chapter 114, Laws of 1909, did not affect the relationship of the two statutes. In Bean v. Missoula Lumber Co., 40 Mont. 31 , 104 Pac. 869 , this court said: “When a judge is disqualified in any cause for any of the reasons enumerated in 6315, supra, and a motion is made to transfer it, the moving party is entitled to have the transfer made, subject, however, to the proviso that, if a qualified judge is called to try it, and appears for that purpose, within thirty days, no transfer may be made. The motion is thus held suspended for this length of time.”

5. Having determined that it was the duty of Judge Utter to change the venue of the case of Lohman v. Town of Chinook, the only remaining question suggested is: To what court should [5] it have been transferred? Section 6507 requires that the cause be transferred “to the nearest court where the like objection or cause for making the order does not exist, as follows: If in a district court, to another district court.” This section is a general statute applicable to changes effected for any cause for which a change of venue may be had. Chapter 114, Laws of 1909, above, is a particular statute which, in so far as it deals with the subject “change of venue,” provides that if the cause for the change is disqualification of the judge under the so-called fair trial law, then the case in which the disqualifying affidavit is filed shall be “transferred to a district judge of another judicial district of the state.” Reading these several statutes together, and we think the intention of the legislature was that in a case where the presiding judge is disqualified for imputed bias, and the invited judge fails for *252 thirty days after motion for change of venue has been filed, to appear and assume jurisdiction of the ease, it then becomes the duty of the presiding judge to transfer the cause to the nearest district court of another judicial district.

6. The authorities are quite unanimous in holding that the [6] terms “nearest court” refer to the court which can be reached by the shortest route of travel in the usual mode of travel.

Tested by these rules, the relator is entitled to the relief sought, and a peremptory writ will issue forthwith.- Mr. Chief Justice Beantly and Mr. Justice Sanneb concur.