148 P. 312 | Mont. | 1915
delivered the opinion of the court.
The admitted facts in this proceeding are: On March 24, 1915, there was, and for approximately two years had been, pending in department No. 2 of the district court of Lewis and Clark county, Hon. J. Miller Smith, judge presiding, the guardianship of the person and estate of Mary Murphy, incompetent. On that day, at 4:50 P. M., and in that proceeding, Anna. E. Nett filed her affidavit to disqualify Judge Smith from further
That a right may be conferred by statute; that when so con-
It is urged by the respondents that, as the statute by its terms restricts' the right of disqualification to parties, the guardian
But it is said that unless the affidavit is filed before the day fixed for the hearing, the right to disqualify is lost, and, as that
It is argued that the guardian is in no position to challenge
In our opinion, the order fixing the day of the hearing of the petition to restore Mary Murphy was, under the circumstances, an abuse of discretion by the judge who made it, and it is therefore annulled.
Order annulled.