19 Nev. 363 | Nev. | 1886
The judge of the third judicial district court, who tried this cause, overruled defendant’s “ motion for a new trial upon the ground that no statement on motion for a new trial had been filed within the time required by law.” The notice of motion for a new trial was filed and served October 14, 1885, and thereafter, on the seventeenth of October, the judge of the second judicial district court, “who was disqualified to try said cause,” made an order extending the time in which to file and serve said statement on motion for a new trial. If this order extending the time is valid, then the statement was filed within time. If it was invalid, the order refusing a new trial must be affirmed.
The statute of this state declares that “ a judge shall not act as such in an action or proceeding, * * * when he has been attorney or counsel for either party in the action or proceeding; but this section shall not apply to the arrangement of the calendar or the regulation of the order of business.” (Gen. Stat. 2464.) Under the provisions of this statute a judge “ who is disqualified to try the cause ” is only authorized to make such formal orders as may be necessary for the arrangement of the calendar, or regulation of the order of business, so that the cause can be tried, or judicial acts relating thereto performed, by a judge who is qualified to try the cause.
At common law any action upon the part of a judge interested in the cause was regarded as an error or irregularity, to be corrected by a reversal of his judgment; “ but the general effect of the statutory prohibitions in the several states is undoubtedly to change the rule of the common law so far as to render those acts of a judge involving the exercise of judicial discretion, in a case wherein he is disqualified from acting, not voidable merely, but void.” (Freem. Judg., sec. 146; People v. De La Guerra, 24 Cal. 73; Estate of White, 37 Cal. 190; In re Cottle, 5 Pick. 483; Coffin v. Cottle, 9 Pick. 292; Hall v. Thayer, 105 Mass. 219 ;
The action of the court in denying a new trial, upon the ground that no statement on motion for a new trial had been filed within the time required by law, must be sustained.
The judgment of the district court is affirmed.
7 Am. Rep. 513.