51 P. 747 | Idaho | 1897
This is an appeal from an order made by the district court of the third judicial district sitting in and for Ada county, denying the motion made by the plaintiffs (appellants here) for a change of venue on the ground that the district judge was disqualified from acting as judge in the cause, he having been attorney for the defendants. Said motion was supported by affidavit. The defendants opposed the motion, and filed in opposition to the motion the affidavit of! John Lemp, the defendant, to the effect that the witnesses on behalf of the defendants (naming them) are numerous, and that said witnesses are business men residing at and engaged in business in Boise City, in said Ada county, and that the convenience of said witnesses required that the cause be tried in said Ada county. The motion was heard, and the district court made the following order, September 29, 1897: “This cause came on for hearing upon the affidavit of plaintiffs for a change of venue herein, and the counter-affidavit of defendants, this court being disqualified, and declining to act herein; D. D. Williams, Esq., and H. E. McElroy, Esq., appearing as counsel for the plaintiffs, and W. E. Borah, Esq., appearing as counsel for the defendants; whereupon said cause was argued before the court by the respective counsel, and thereupon counsel for the defendants agree in open court that the court may appoint any judge within the state, or any attorney of thi§
By the provisions of subsection 4 of section 4135 of the Revised Statutes, it is the duty of the court in which an action is commenced, on motion made therefor, to grant a change of venue “when from any cause the judge is disqualified from acting.” Section 4126 of the Revised Statutes, provides that the change must be made to the court agreed upon by the parties, or, if they do not agree, the action, if pending in a district court, must be changed to another district court — the nearest court where the like 'objection or cause for making the order does not exist. Section 12 of article 5 of the constitution is as follows: “Every judge of the district court shall reside in the district for which he is elected. A judge of any district court may hold a district court in any county at the request of the judge of the district court thereof, and, upon the request of the governor, it shall be his duty to do so; but a cause in the district court may be tried by a judge pro tempore, who must be a member of the bar, agreed upon in writing by thej parties litigant, or their attorneys of record, and sworn to try the cause.” Upon the application and showing made, we think that the district court should have granted the motion, and changed the venue of the' action to the court that should be agreed on by the parties, or, if they failed to agree, then to
But it is urged that no substantial rights of the appellants are affected by the order appealed from, and that the order, for that reason, should be affirmed. This contention is not, in our opinion, correct. The appellants are entitled to a speedy trial. True, the district judge of the third district might, under the constitution, request another district judge to come to Ada county, and try the cause; still it would be optional with the judge so requested, unless commanded by the governor, to come or not. And there is great probability that the judge so requested might be holding a term of his own court at the time when his presence in another district was so desired. Then it frequently takes considerable time to make up the issues, and attend to those matters which are preliminary to the trial, especially in equity cases, where the parties are numerous. And for these and other palpable reasons the substantial rights of the appellants were affected by the order in question. The parties had the power to agree upon a judge pro tempore to try the cause, but they did not do so. The court below, nor the judge thereof, has any power to compel the parties to agree upon a judge pro tempore, or to compel another district judge to come to Ada county, or to compel the governor to request