87 N.W. 999 | N.D. | 1901
In this proceeding an alternative writ of mandamus issued out of this court and was served upon the respondent on the 18th day of July, 1901. In substance the writ required the respondent forthwith to obey the command of the writ, or show cause why he should not do so, before this court, at the city of Grand Forks, on the 18th day of September, 1901. On the return day the respondent showed cause by serving and filing an answer to the alternative writ, whereby certain issues of fact were framed. Later in the term the respective parties submitted affidavits upon the issues of fact, and after an oral argument the matter was submitted to this court, upon written briefs, for final determination. The alternative writ, omitting the title, is as follows: ‘'The State of North Dakota to the Hon. W. S. Lauder, as Judge of the District Court of the Fourth Judicial District in and for the County of Richland and State of North Dakota, Greeting: Whereas, it manifestly appears to us by the affidavit of P. J. McCumber, on the part
The subject-matter contained in the alternative writ will require a construction of the provisions of a statute of recent origin, and now embraced in § 5454a, Rev. Codes 1899, which reads as follows: “When either party to a civil action pending .in any of 'the district courts of the state shall, after issue joined and before the opening of any term in which the cause is to be tried, file air affidavit, corroDorated by the affidavit of his attorney in such cause' and that of at least one other reputable person, stating that there is good reason to believe that such party cannot have a fair and impartial trial of said action by reason of the prejudice, bias or interest of the judge of the district court in which the action is pending, the court shall proced no further in the action, but shall forthwith request, arrange for and procure the judge of some other judicial district of the state to preside at said trial in the county of the judicial subdivision in which the action is pending. The actual expenses of such judge while in attendance upon the trial of the cause for which the change was had and the extra expense of the court and jury, incurred by reason of said change, shall be paid by the person asking for the change, in advance, or a bond to be approved by the clerk of the district court given therefor, the amount of said bond being fixed by the presiding judge; provided, that not more than one such change shall be granted cu application of either party.” It appears from the recitals in the alternative writ that the substance of the charge as made bv the plaintiffs against the respondent is that the respondent has persistently and wilfully neglected and refused to request and arrange for and procure the attendance of a judge ’of some other judicial district to preside at the trials of cases in Rich-land county in which affidavits of prejudice and undertakings have bein filed pursuant to the statute above set out. In support of this accusation, as well as by way of defense against the same, voluminous affidavits have been submitted to this court by the respective parties setting out divers matters of fact having reference not only to cases on the trial calendar of the district court for Richland county at the term which convened on the 2d day of July, 1901, but also to cases on the trial calendar at previous terms of said court,
We turn now to a consideration of the facts which are, in our opinion, decisive of this case. Respondent admits that he made no effort whatever to call in another judge in the vacation period which intervened between the adjournment of the district court for Rich-land county in January, 1901, and its reassembling for the July, 1901, term in that county. We think that no valid excuse is offered by the respondent for this lengthy period of inactivity. Counsel argue that it was necessary to wait until court convened in July, 1901, and until the calendar had been called for that term, before it could be known to the court what cases were for trial at the July term. We regard this excuse as inadequate to justify the respondent's failure to act in the vacation period. The array of cases (some 30 in number) in which the respondent was disqualified under-the statute were at issue and on the trial calendar in January, 1901. Under the law and the practice of the district court, these cases were severally entitled to a place on the trial calendar at the July term next ensuing, and they were in fact duly placed on that calendar for trial. There arises no presumption of either law or fact that said cases, or any of them, would be settled in the interregnum. The presumption is that a case which is at issue and on the calendar and not disposed of at one term will be on the calendar for disposition at the next ensuing-term, and all interested parties are required to act upon this presumption. Under such circumstances, the respondent was chargeable with notice that such cases would be on the calendar for trial in July, and with the further notice that suitors in said cases would, under the law, be entitled to have certain action taken by him with a view to calling in an outside judge to preside in such cases. But in this expectation suitors were grievousty disappointed. No action whatever looking towards the performance of his duty in this behalf was taken by the respondent before court convened in July. Nor did the court volunteer to inform suitors on the first day of the July term that nothing had been done by him looking towards calling in another judge. Even when applied to by counsel for information upon this vitally important matter, no information was given, beyond the meager general statement that the court, when it had information to give as to this matter, would impart the same to counsel. But, as a matter of fact, the respondent had no information to impart on the first day of the July term concerning the matter, and this absence of
Reverting to the term of court which convened on July 2, 1901, we will now inquire what the respondent did, and what he omitted to do, after court convened, relative to calling in another judge in these cases. Upon this point we shall quote at length from the brief of respondent’s counsel. The court announced that it would first try jury cases, civil and criminal, in which he could preside, after which, if possible, he would have another judge there to take up the other cases. Referring to the first day of the term, counsel say: “On this same day, as soon as the respondent could possibly estimate the time when an outside judge could be used, 'he wrote to Judge Pollock, of the Third district, — he being the nearest judge to the respondent,— requesting his attendance in the trial of the prejudice cases. On July 3d Judge Pollock answered, stating that it would be after the xst of August before it would be possible for him to attend. His letter is shown as Exhibit A, attached to respondent’s return. On receipt of the answer from Judge Pollock, the respondent immediately corresponded with Judge Glaspell, of the Fifth district. His answer is shown as Exhibit C, attached to the return, and shows conclusive!}' that his atendance could not be secured. Even before receiving the reply from Judge Glaspell, and in his effort to secure the attendance of some judge to sit in the trial of cases in which affidavits had been filed, the respondent communicated with Judge Fisk, of
The circumstances attending the adjournment of the July term must be stated, for the- reason that it is strenuously contended in behalf of the respondent that such adjournment, in the surrounding conditions, was a sound and proper exercise of the discretion vested in all courts, viz.the discretion to adjourn court either for a short or a long period, as the court may, in the exercise of sound discretion, determine. It apears that one of the plaintiff’s attorneys was in court immediately preceding the adjournment, and then and there, in a respectful manner, earnestly remonstrated against the adjournment then about to be made, and urged the respondent to refrain from any adjournment of court
The writ was served the next day after the district court adjourned, and since such service the respondent has had full opportunity to show cause why he has failed to perform the duty laid upon him by the statute. Has the respondent succeeded in showing cause? We are constrained by the undisputed facts in this record to answer this question in the negative. It is conceded that no outside judge has ever apeared in Richland county to try any of these cases, except Judue Fisk alone, who was. called in after said adjournment to try court cases at the adjourned term in October. No claim is made that any judge has been arranged for or procured to try the large majority of the cases, i. e. the jury cases. We have seen that the defendant wholly failed and neglected to act in the
But counsel has invoked a very elementary rule of law in mandamus proceedings, requiring that the peremptory writ shall, in matters of substance, conform in its requirements to the alternative writ. Under this rule, counsel insists that no peremptory writ can issue in this case, because, as he claims, the alternative writ was issued to require the respondent to call in an outside judge to preside at the July, 1901, term, and no other term of court, and, that term being now ended and over with, it becomes according to this view of counsel, impossible to legally require the respondent to call in an outside judge for that term. But there is no basis of fact for this argument to rest upon. The relief sought in this proceeding is primarily and essentially to require the resspondent to perform his statutory duty with respect to specified cases in which respondent was disqualified to preside, and which were on the calendar of the July term in 1901. When the alternative writ issued, the duty of the respondent as to such •cases had not been performed, and the, alternative writ directed the respondent to perform the same, or show cause why he should not do so. The proofs submitted to this court show that the same identical duty which was referred to and required to be performed by the terms of the alternative writ is still unperformed. So far as has been shown, no arrangement has yet been made for calling in a judge to try the jury cases which are referred to in the first writ. It is true that the plaintiffs hoped that the writ might so operate that a trial of these cases could be had in July. In this they were thwarted, but this circumstance in no wise militates against their right to the substance of the relief which they originally sought, and which they now are seeking at the hands of this court. There was no mandate in the alternative writ requiring respondent to call in a judge for the July term, or for any particular term of court. This will be apparent from a reading of the mandatory part of the alternative writ already set out. We can see no difficulty in this case which can prevent the issuing of the peremptory writ, and much less do we concede that such writ, when issued, will be, as counsel claims it will be, “unavailing” and “fruitless.” It is further true that the ancient and stricter rule in mandamus has been relaxed by modern adjudications, under which a final writ “may be in any form consistent with the' case made by the complaint presented, and embraced within the issues.” See State v. Weld, (Minn.) 40 N. W. Rep. 561. The statute embraced in § 5454a Rev. Codes 1899, is essentially a remedial statute, and no rule of construction is better established than that requiring
Our conclusion is that the peremptory writ should issue in this case, and be served upon the respondent, and that such writ should conform substantially to the mandatory feature of the alternative writ, excepting therefrom only the order to show cause. It will be adjudged accordingly.