Callahan v. Callahan

165 P. 1122 | Idaho | 1917

BUDGE, C. J.

Appellant instituted an action, in the district court for the first judicial district, in and for Shoshone county, for a decree of divorce from respondent. The respondent, after filling her answer and cross-complaint, made a motion for a change of venue, upon the ground that the Honorable William W. Woods, judge of said court, was disqualified, “because of the bias and prejudice of the said Judge,” and based her motion upon the records and files in the action, and upon her affidavit, in which she stated: That she had been advised by certain residents of Shoshone county and that she believed, and therefore alleged, that she could not have a fair and impartial trial before said judge, by reason of his friendship for appellant and prejudice against respondent; that appellant had on numerous occasions stated to her that he could win any case in which he was a party before said judge, because of his long'friendship and the influence which appellant had over him; that in some actions decisions had been rendered favorable to him, by reason of such influence and friendship; that when decisions had been rendered against him he had .lost solely on account of the misconduct of his counsel; that the judge had been for more than thirty years a close and intimate friend and political associate of appellant, and by reason thereof respondent could not have a fair and impartial trial; and that said judge was apprised of certain matters which had taken place between the parties to the action, looking to condonation and settlement, after the suit had been filed, and would be a material witness upon the trial..

At the hearing of the motion counter-affidavits had not been filed, but the substance of the counter-showing, thereafter made and filed, was stated to and considered by the court in making the following order, to wit:

“ .... The Court .... being fully advised in the premises, and it satisfactorily appearing to the said Judge that he is disqualified from trying the said cause, and that sufficient ground exists therefor,—

“Now, therefore, it is ordered, a change of the place of trial of the said action be and the same hereby is granted, and that the said cause be and the same hereby is transferred to the District Court of the Eighth Judicial District of the State of Idaho, and to the Honorable Robert N. Dunn, one of the Judges of the said District Court.”

On appeal from the above order, granting a change of the place of trial, appellant contends: First, that the showing made was insufficient to establish bias and prejudice; second, that if the showing was sufficient, a change of venue should not have been granted, but that another district judge should have been called in to try the ease; third, that if the showing was sufficient and the judge was within his rights in ordering a change of venue, that the order is void for insufficiency in that it should have specified the particular county to which the cause was transferred; fourth, that if the showing was sufficient the order was void for the reason that it designated the particular judge, there being two judges in the district to which it was transferred.

Upon the first proposition appellant relies mainly upon the decision of this court in Bell v. Bell, 18 Ida. 636, 111 Pac. 1074, which reversed an order granting a change of venue under somewhat similar circumstances, upon the ground that the showing was insufficient, in that it did not recite the facts which were relied upon to establish the existence of prejudice and bias on the part of the judge. In the instant case an examination of the affidavit discloses the facts relied upon to establish the existence of bias and prejudice on the part of the trial judge, which we think are sufficient.' (Booren v. McWilliams, 33 N. D. 339, 157 N. W. 117; Faivre v. Mandercheid, 117 Iowa, 724, 90 N. W. 76; Morehouse v. Morehouse, 136 Cal. 332, 68 Pac. 976.) In the latter case it was said:

“But here there is a direct allegation of the fact of prejudice and bias on the part of the judge; and, though the allegation is based — as in most cases it must be based — merely on the belief of affiant, yet it is accompanied by a statement of the facts on which the belief is based, as complete as the nature of the case admitted of; and this was all that could reasonably be required.”

The latter case was quoted with approval in Bassford v. Earl, 162 Cal. 115, 121, 121 Pac. 395-398, wherein the order denying the motion for a change of venue was reversed, for the reason that there was no affidavit of the trial judge opposing the movant’s showing, the court saying:

“If such a statement was necessary in answer to the Bass-ford affidavit, and not only do we think it was, but from the affidavit of Mr. "Wheeler it seems so to have been regarded by the respondents to that motion, the one person, who, with an informed mind, could make such a declaration, was the judge himself, and he does not do so.”

The same rule was announced in Keating v. Keating, 169 Cal. 754, 147 Pac. 974; Jones v. American Cent. Ins. Co., 83 Kan. 44, 109 Pac. 1077. Not only did the trial judge, in the ease at bar, make no such affidavit, but, on the contrary, he expressly finds in his order that he is disqualified and that sufficient ground exists for a change of venue. The order, therefore, was properly granted.

Again referring to the Bell case, it will also be noted that that case was decided in 1910 and that section 4125, Rev. Codes, has been amended by ch. 96, Sess. Laws 1913, p. 385, to read as follows:

“The court or judge must, on motion, when it appears hy affidavit or other satisfactory proof, change the place of trial in the following cases: .... ” (Italics ours.)

In this amendment “may” has been changed to “must” and the other italicized portion has been added. Just what the legislature intended to include in the clause “other satisfactory proof” does not appear. But where the showing is such as appears in this record, and where the trial judge himself has expressly found that he was satisfied of his own disqualification and that sufficient grounds existed for a change of venue, it would not only be unjust to the parties litigant, but it would be an imposition upon the trial judge for this court to compel him to try the case under such circumstances.

The second point urged by appellant is equally without merit, in view of the language of sec. 4126, Rev. Codes, which provides that whenever the judge is disqualified in an action, “it must be transferred for trial to such other court of competent jurisdiction as may be agreed upon by the parties by stipulation in writing in open court, and entered in the minutes; or, if they do not so agree, then to the nearest court where the like objection or cause for making the order does not exist.” In other words, when a motion for a change of venue, on the ground of the bias and prejudice of the trial judge, is supported by a sufficient showing it is the duty of such judge to grant a change of venue, and such duty is mandatory and not discretionary. (Gordon v. Conor, 5 Ida. 673, 51 Pac. 747.)

Keeping the latter section in mind, appellant’s third and fourth objections are readily disposed of. It is clear that the parties did not agree by stipulation in writing, entered in the minutes, or otherwise, that the cause should be transferred to any other court, and failing in this, the judge being disqualified, the statute fixes the court to which the cause should be transferred, namely, to another district court and “to the nearest court where the like objection or cause for making the order does not exist.” What is the nearest court is a fact of which both the trial court and this court take judicial notice.

The order should have transferred the cause to the district court of the eighth judicial district for Kootenai county, without designating what judge should try the ease. That portion of the order which designated the particular judge must be regarded as mere surplusage, in view of sec. 3829, Rev. Codes, as amended by ch. 4, Sess. Laws 1911, p. 6, which provides that the senior judge shall apportion the business of such district among such judges, as equally as may be.

The order appealed from is affirmed, and the trial judge who made the order, is directed to amend the same in conformity with the views herein expressed. Costs awarded to respondent.

Morgan and Rice, JJ., concur.