50 P.2d 512 | Nev. | 1935
No notice of the setting of the trial of June 17, 1935, or at any date, for hearing upon its merits was ever given by the plaintiff therein to defendant, or at all; and said action was noticed for June 3, 1935, for the *300
purpose only of calling up and having disposed of defendant's motion for leave to file an amended answer and counterclaim, and all other motions and demurrers pending and unheard in the action. In the absence of notice of other proceedings, action upon said motions, demurrers, etc., was all which the court, at said time, could properly take. Murrish v. Kennedy,
The records in this proceeding show that on June 17, 1935, prior to the calling of the action, defendant filed therein a statutory affidavit of prejudice or bias of the presiding judge, the Hon. J. Emmett Walsh. Upon the filing of said affidavit, the sole and only authority the said district judge had was to make the change commanded by the statute. State ex rel. Stokes v. District Court,
The provision of sec. 8407.02 N.C.L., which limits a change of judge to one change, and one only, is a violation of the fourteenth amendment to the constitution of the United States, and art. I, sec. 8, of the constitution of Nevada, and does not constitute either due process of law or equal protection of the law, as it would compel a litigant to try his case before an interested, biased, prejudiced judge. Herbert v. Louisiana,
The proposed hearing of the motion for a new trial proposed to be heard in Goldfield on July 5, was proposed to be held upon notice of seven days only. The statutory requirement is ten days. Section 8911 N.C.L. Such notice is insufficient, and confers no jurisdiction upon the respondent judge in the premises. Murrish v. Kennedy, supra. *301
The attempt to conduct proceedings at Goldfield, Esmeralda County, in an action pending in Eureka County, is clearly outside the power of the judge and the contemplation of the statute. Sec. 8385 N.C.L.; State v. Bardmess,
The phrase "at chambers" cannot mean any room or place the judge may find it convenient to listen to argument; it is related to and connected with the court and county seat and is not the domicile of the individual judge. Kirby v. C.R.I. P.R. Co., supra; Bedwell v. Ross (Okla.),
Before 10 o'clock on the morning of June 17, 1935, defendant filed in the lower court an affidavit alleging bias or prejudice on the part of Judge Walsh, who disregarded it because of the affidavit previously filed disqualifying Judge Edwards. At or shortly after 10 *304 o'clock a.m., on June 17, 1935, Judge Walsh proceeded to try said cause at Eureka; defendant not being present or represented by attorney. Evidence was offered by plaintiff, and judgment was rendered for plaintiff and against defendant. On June 21, 1935, defendant served notice of motion to retax costs. On June 26, 1935, defendant served and filed notice of intention to move for new trial. On June 27, 1935, plaintiff served notice on defendant that "on Friday, the 5th day of July, 1935, at ten o'clock a.m., or as soon thereafter as counsel can be heard, at the Chambers of the Honorable J. Emmett Walsh at the Court House at Goldfield, Esmeralda County, Nevada, plaintiff will call up for hearing the Motion of the defendant to Retax the Costs, and at the same time and place will call up for hearing defendant's Motion for a New Trial, and all other motions in said cause that can be heard in Chambers." On July 3, 1935, defendant filed its petition for writ of prohibition with the clerk of this court, and on the same date an alternative writ was issued restraining and prohibiting respondent court and judge "from considering or hearing defendant's said motion to retax costs, and defendant's said motion for a new trial, and from taking any other proceeding in said action at Chambers in the Court House at Goldfield, Esmeralda County, Nevada, until further order of this court." Respondent judge, J. Emmett Walsh, in his answer to said petition filed with the clerk of this court on the 19th day of July, 1935, states: "That this affiant would have heard the said Motions or any motions in said cause that could be heard in Chambers, and would have determined the matters in accordance with the law and the procedure of this state, but due to the fact that he received information that a Writ of Prohibition had been issued by this Honorable Court, he took no further steps in said matter."
Petitioner contends that respondent judge has no power to do anything relating to said action in the district court, except to reassign it to some other district judge for further hearings. This position is based upon *305 the ground that section 8407.02 N.C.L. (Statutes of Nevada 1931, c. 153, sec. 3, p. 248), is unconstitutional insofar as it provides that "not more than one change of judge may be granted in any action." The fifth clause of section 8407 N.C.L., as amended, Stats. 1931, p. 247, provides that: "If either party to a civil action in the district court or his or its attorney or agent shall file an affidavit alleging that the affiant has cause to believe and does believe that on account of the bias or prejudice or interest of said judge he cannot obtain a fair and impartial trial, the said judge shall at once transfer the action to some other department of the court, if there be more than one department of said court in said district, or request the judge of some other district court of some other district to preside at the hearing and trial of such action; provided, the party filing such affidavit for change of judge shall at time of filing same pay to the clerk of the court in which such affidavit is filed the sum of twenty-five dollars, which sum shall be by the clerk transmitted to the state treasurer, who shall place the same to the credit of the district judges' traveling expense fund; provided, that this section shall not apply to the arrangement of the calendar, or the regulation of the order of business." Section 8407.02 N.C.L., already referred to, reads as follows: "Not more than one change of judge may be granted in any action, but each party shall be heard to urge his objections to any judge in the first instance, and the change of judge shall be to the most convenient judge to which the objections of the parties do not apply or are least applicable. If the parties agree upon a judge then such judge shall be selected."
Counsel has not cited, nor has the court been able to find, any other case in which the constitutionality of the Nevada statute or other similar statutes concerning the disqualification of judges has been attacked upon the ground that under their provisions but one change of judge may be granted in any action.
The federal statute providing for the disqualification of a trial judge for personal bias or prejudice by the *306 filing of an affidavit contains the further provision that: "No party shall be entitled in any case to file more than one such affidavit." U.S.C.A., title 28, sec. 25.
When State ex rel v. Clancy,
Petitioner's contention that the provision of section 8407.02 N.C.L., limiting the number of changes of judges to one is unconstitutional, rests upon the grounds that said provision violates the fourteenth amendment of the United States constitution, art. 1, sec. 8, of the Nevada constitution, and that said provision does not constitute either due process of law or equal protection of the law.
In Allen v. Reilly,
In State ex rel. Elsman v. Second Judicial District Court,
And see 33 C.J. 998, 999; Bancroft's Code Practice and Remedies, vol. I, p. 854; 17 Am. and Eng. Encyc. of Law (2d ed.), p. 738.
Section 9021 N.C.L. provides that: "The common law of England, so far as it is not repugnant to, or in conflict with the constitution and laws of the United States, or the constitution and laws of this state, shall be the rule of decision in all the courts of this state." The Nevada statute relating to the disqualification of district judges on account of bias or prejudice is more favorable to parties desiring to disqualify such judges on those grounds than the common law or any law of Nevada up to the time said legislation was enacted, notwithstanding the limitation allowing but one change of judge.
1. In view of what has been said, we decline to hold that that portion of section 8407.02 N.C.L. which provides that not more than one change of judge may be granted in any action, is unconstitutional.
As a further reason why the alternative writ should be made permanent, petitioner contends that Judge Walsh has no jurisdiction to hear either the motion for new trial or the motion to retax costs at his chambers at Goldfield. It is argued that, while any district judge may transact chambers business in any part of the state, such business is limited to that of the county where the judge may be. In other words, if a judge be called from his own district to try a case in another, he may, while in the county where such trial is held, transact chambers business therein, but he cannot, as petitioner contends, return to his own district and there hear, in his *309 chambers, a motion for new trial or a motion to retax costs in the case tried in such other county.
Sections 8385, 8469 and 8910 N.C.L. read as follows:
"§ 8385. The district judges shall, at all reasonable times, when not engaged in holding courts, transact such business at chambers as may be done out of court. At chambers they may try and determine writs of mandamus, certiorari, quo warranto and default cases, hear and dispose of motions for new trials, and all applications for writs which are usually granted, in the first instance, upon ex parte application, and may also, in their discretion, hear and determine applications to discharge such orders and writs. They may also hear and determine applications for writs of assistance at chambers."
"§ 8469. The district judges of the State of Nevada shall possess equal coextensive and concurrent jurisdiction and power. They shall each have power to hold court in any county of this state. They shall each exercise and perform the powers, duties and functions of the court, and of judges thereof, and of judges at chambers. The decision in an action or proceeding may be written or signed at any place in the state, by the judge who acted on the trial and may be forwarded to, and filed by the clerk, who shall thereupon enter judgment as directed to in the decision, or judgment may be rendered in open court, and, if so rendered, shall be entered by the clerk accordingly. If the public business requires, each judge may try causes and transact judicial business in the same county at the same time. Each judge shall have power to transact business which may be done in chambers at any point within the state, and court shall be held in each county at least once in every six months, and as often and as long as the business of the county requires. All of this section is subject to the provision that each judge may direct and control the business in his own district, and shall see that it is properly performed."
"§ 8910. Motions and orders which may be made at chambers may be made in any part of the state." *310
In the case of Twaddle v. Winters,
2. Under the statutes of this state we are impelled to hold that Judge Walsh has jurisdiction to hear the motion for new trial at his chambers in Goldfield.
We have not overlooked the argument of petitioner based upon that provision of section 8877 which provides that: "Reference may be had in all cases to the pleadings and the orders of the court, and, when the motion is made on the minutes, reference may also be had to the depositions, documentary evidence, and the stenographic notes or report of the testimony and the records of the court." (The last-quoted provision has been carried over into the 1935 new trials and appeals act, Statutes of 1935, c. 90, sec. 3, at pages 195, 196.) In view of said provision, it is plain that it would be easy to abuse the power to hear a motion for new trial in a county other than that in which a trial was held, because in some cases the inconvenience and expense attendant upon such a course would be very considerable to say the least. It is not to be presumed, however, that district judges will arbitrarily abuse their powers in this *311
respect. In the majority of states it is our understanding that motions for new trial can be heard only in the county where the trial was held. It is for the legislative department to determine whether it would be better that such a rule should obtain in Nevada. In Idaho, unless there has been a recent change, the statute expressly provides that: "The motion for a new trial may be brought to a hearing before the judge who tried or heard the case, at chambers, or in open court, in any county of the state." Code 1932, sec. 7-609. This statute is mentioned in note 13, on page 8131 of vol. VII, Bancroft's Code Practice and Remedies. The text, however, at pages 8130, 8131, says that generally a motion for a new trial must be heard and decided in open court in the county where the case was tried. An interesting case upon the question now under discussion is Grayson v. Perryman,
We are also of opinion that Judge Walsh has jurisdiction to hear the motion to retax costs in his chambers in Goldfield. It is true that section 8385 N.C.L. does not, expressly or by implication, empower a district judge to hear, at chambers, a motion to retax costs; and this court has held in Kline v. Vansickle,
5. Petitioner claims that the district court was without power or jurisdiction to try the case on its merits on June 17, because (a) no notice of the setting of the trial for hearing on the merits was ever given; (b) two motions by defendant had been regularly noticed for hearing, but had not been heard or disposed of; (c) defendant had not waived a jury trial. These matters will no doubt be urged on the hearing of the motion for new trial; in our opinion it would not be proper for us to decide them in the present proceeding in this court.
The petition for writ of prohibition is denied and the alternative writ dismissed. *313