Lead Opinion

BUDGE, J.

This is an original proceeding for a writ of mandate to require the Honorable AYallace N. Scales, as judge of the district court of the tenth judicial district for Nez Perce county, to grant a motion for a change of venue. The motion was made on the ground of implied bias of the judge. Before ruling upon the motion, and at the request of the judge, the defendant in the action below filed a petition, for an application to the Governor to call in another judge to try the case, whereupon the following order was made:

“Now, therefore, the judge of the above-entitled court hereby finds and adjudges that he is disqualified from trying the above-entitled cause; and it is further ordered and adjudged that the motion of the plaintiff be denied and that the judge of the above-entitled court refuses and declines to transfer the said cause for trial and the matter is left for such action as the Governor of the state of Idaho may see fit to take; to which ruling of the court the plaintiff excepts and her exception is allowed.”

The defendant sets up in his answer (1) that he is not disqualified, (2) that a change of venue on the ground of disqualification of the judge is not mandatory where a petition to call in ap other judge is seasonably filed, and (3) that mandamus is not the proper remedy where there is a right of appeal.

This proceeding involves a construction of C. S., sees. 6666 and 6667. These sections have been recently construed by this court, and it was held that when a judge is disqualified, his duty to grant a change of venue to the nearest court where the like objection or cause for making the order does not exist is mandatory and not discretionary. (Callahan v. Callahan, 30 Ida. 431, 165 Pac. 1122.)

Nor is the mandatory nature of his duty in such a case affected by an application, either timely or otherwise, under subd. 4 of the latter section, to have the Governor call in' another judge to try the case, where a motion has been made for a change of venue. A contrary holding would nullify the mandatory provision of the former section that the court *610or judge must on motion change the place of trial. A motion having been made and the judge having found and adjudged that he is disqualified, no discretion remains in him to take any further action in the case of any nature whatsoever than to immediately transfer the cause as prescribed by these sections.

.The merits of the judge’s finding and order that he is disqualified are not before us in this sort of a proceeding. The only question presented by an application for a writ(of mandate is whether or not the defendant is refusing to do or perform a mandatory ministerial duty. The merits of the order adjudging the judge disqualified are only reviewable upon appeal.

The right to apply to the Governor under subd. 4 of sec. 6667, supra, furnishes no adequate remedy for he may or may not, in his discretion or at his convenience, call in another judge to try the case.

Nor is the remedy by appeal in such a ease speedy or adequate. The question in this class of cases is not solely whether some other remedy exists, but whether the other remedy, if it does exist, is a speedy one and adequate to meet the exigencies of the situatioñ. It has been frequently held that the existence of a remedy by appeal is not conclusive as to-the other elements involved in the remedy by mandamus, viz., speed and adequacy. In this particular case, the court had no judicial function to perform but the statute enjoined upon it a ministerial duty only. It was the right to the litigants' to have this ministerial duty performed without delay. The writ in this case does not take the place of an appeal, for the reason that there was no judicial action for the court to perform and subject to review on appeal. (Fenton v. Board of County Commrs., 20 Ida. 392, 119 Pac. 41; Holtum v. Greif, 144 Cal. 521, 78 Pac. 11; Careaga v. Fernald, 66 Cal. 351, 5 Pac. 615; Ex parte State Bar Assn., 92 Ala. 113, 8 So. 768, 12 L. R. A. 134; State v. Castleberry, 23 Ala. 85.)

That mandamus will lie to compel a disqualified judge to grant a change of venue has long been regarded as settled law in jurisdictions having statutory provisions essentially *611like onr own. (Livermore v. Brundage, 64 Cal. 299, 30 Pac. 848; Drumdick v. Crump, 98 Cal. 117, 32 Pac. 800; Best v. Parks, 82 Or. 171, 161 Pac. 255; Crook v. Newborg, 124 Ala. 479, 82 Am. St. 190, 27 So. 432; Graham v. People, 111 Ill. 253.)

Let the peremptory writ issue.

Rice, J., concurs.

Dissenting Opinion

MORGAN, C. J.,

Dissenting. — An appeal to this court from an order of a district court granting or refusing to grant a change of place of trial is allowed by C. S., sec. 7152. That remedy is plain — it is expressly provided for by statute; it is speedy- — an appeal may be perfected immediately upon the filing of the order; it is adequate — C. S., sec. 6446 provides: “The court may reverse, affirm or modify any order or judgment appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further -proceedings to be had.”

C. S., sec. 7255, contains the following provision with respect to mandamus: “The writ must be issued in all eases where there is not a plain, speedy and adequate remedy in the ordinary course of law.”

This court said in Beem v. Davis, 31 Ida. 730, 175 Pac. 959: “The existence of an adequate remedy in the ordinary course of law, either legal or equitable in its nature, will prevent the issuance of the writ of mandate,” and in Olden v. Paxton, 27 Ida. 597, 150 Pac. 40, wherein a writ of prohibition was sought, we quoted from State ex rel. v. Seay, 23 Mo. App. 623, as follows: “It is settled that mandamus does not lie when the party aggrieved has a remedy by appeal..... By parity of reasoning prohibition, which is but a negative mandamus, should not lie unless, at least, the case presents features clearly indicative of the fact that the remedy by appeal is wholly inadequate.” (See, also, Blackwell Lumber Co. v. Flynn, 27 Ida. 632, 150 Pac. 42; Fraser v. Davis, 29 Ida. 70, 156 Pac. 913, 158 Pac. 233; Saint Michael’s Monastery v. Steele, 30 Ida. 609, 167 Pac. 349; Little v.

*612Broxon, 31 Ida. 303, 170 Pac. 918; and Hanson v. Weniger, 31 Ida. 540, 173 Pac. 1085.)

The employment of the remedy by appeal in cases of this kind is the settled practice in this state. (Gordon v. Conor; 5 Ida. 673, 51 Pac. 747; Day v. Day, 12 Ida. 556, 10 Ann. Cas. 260, 86 Pac. 531; Bell v. Bell, 18 Ida. 636, 111 Pac. 1074; Callahan v. Callahan, 30 Ida. 431, 165 Pac. 1122.)