Granite Mountain Mining Co. v. Durfee

| Mont. | Oct 21, 1891

De Witt, J,

It has been suggested that the District Court made an order refusing to grant the motion for a change of the place of trial, and that this order is appealable (Code Civ. Proc. § 444), and that therefore a writ of mandate will not lie. But we are of opinion that a fair deduction from the record is that the court simply refused to act on the motion, and this is also the view of counsel for the petitioner. They complain of what they call “non-action” by the court, and seek, by this writ, to bring the court into action.

The disqualification of the judge “to act as such” in the action is, under the statute, unquestioned. In refusing to act, even upon the motion, the judge below obeyed the mandate of the statute literally and fully (Code Civ. Proc. § 547), although it has been suggested that the granting of a change of venue is a formal act, which even a disqualified judge may perform. (Code v. State, 8 Tex. App. 666, cited in Littrell v. Wilcox, ante, p. 77.)

We are then brought to the contention of the parties. Petitioner claims that the granting of a change of venue in this case was not a judicial act, but purely ministerial, in which the court had no discretion, but that the motion should have been granted at once and of course. On the other hand, the respondent contends that the venue should not be changed if the judge of another district will appear and try the action. This is unquestionably correct, and the plain direction of the statute, and so far there is no disagreement between the parties. But the controversy arises as to the procuring of the other judge. Petitioner claims that the disqualified judge cannot call in the judge; that is to say, he cannot select him; that, if he is disqualified to act, he is disqualified to select his substitute. Petitioner admits that there would be no trouble if the other judge were in Judge Durfee’s court by means other than the invitation of the resident judge.

Petitioner’s position reduces itself to about this: It is right for him to try his case before a judge who happens to get into Judge Durfee’s court, but not before one who arrives there by the only means by which another judge could ever so arrive.

There is no provision of the Constitution or the statute, as in some States, by which the governor, or any other officer, could assign a judge to go to Judge Durfee’s court, for any purpose, in a case of this nature. Such, other judge will never voluntarily go to Judge Durfee’s court, and request the judge upon the bench to vacate his seat for him.

Nor is petitioner’s ease helped if he says that he will wait, and the plaintiff must wait, for a trial, until another judge happens to be in the court upon business other than that in controversy; for the other judge will, even then, be there upon the invitation and selection of the resident judge, and the situation is in no manner altered.

When the statute says that the place of trial shall not be-changed for disqualification of the judge, when another judge will appear, etc., it must be construed to mean something, if meaning can be extracted from language; and, in our opinion, it does mean that such judge shall appear by the only method by which it is possible for him to appear, viz., by the invitation of the resident judge. When it is argued that to allow this is to allow a disqualified judge to “act as such in the action,” the reply is that, under our law, the whole subject has been made statutory, and the same power that disqualifies a judge can make an exception to such disqualification, and such exception is found in the constitution of the courts, which makes Judge Dureee the judge of the third district, which clothes him with authority in his own court, and the Constitution (art. viii. § 12), which provides that another judge may sit in his place, and the absence of provision, constitutional or statutory, for any other method by which such other judge can occupy Judge Dureee’s seat, except upon the call of the judge presiding upon that bench.

The application for the writ must be denied, and it is so ordered.

Writ denied.

Blake, C. J., and Harwood, J., concur.