106 Wash. 507 | Wash. | 1919
Relators brought this proceeding to compel respondent to make an order transferring an action in which the relators are made defendants and one Joe Lapinskie is plaintiff, to some other judge for hearing.
The original action was begun in Lewis county on or about the first day of February, 1919. On the 6th day of February, 1919, the defendants moved to make the complaint, more definite and certain. This motion was noticed for hearing on the 17th day of February. On the 17th day of February, the attorney for the defendants made affidavit that he, the attorney, was informed and believed that the respondent herein, and before whom the said cause was pending, was prejudiced against the defendants, and that they, the defendants, could not have a fair and impartial trial before respondent, and moved the court that another judge be called to try the case. On the 17th day of February the respondent judge was not present in
The order made on the 18th day of February was properly vacated. It was entered without notice. So that the only question left for us to decide is whether it was thereafter properly overruled.
If we understand the contentions of counsel for respondent, the motion was overruled because the affidavit of prejudice was made by the attorney and not by the defendants in their own behalf, and for the further reason that defendants, having filed a motion to make the complaint more definite and certain, had submitted themselves to the jurisdiction of the court.
While the statute (Rem. Code, §§ 209-1, 209-2) has been and will continue to be abused, it is a remedial statute and must be liberally construed.
*510 “We have frequently held that, upon a showing seasonably made in compliance with the statute, a moving party is entitled to a change of judges as a matter of right.” State ex rel. Russell v. Superior Court, 77 Wash. 631, 138 Pac. 291.
When considered in the light of its object, we find nothing in the statute that would preclude an attorney from making an affidavit of prejudice. The statute provides that,
“No judge of a superior court of the state of Washington shall sit to hear or try any action or proceeding when it shall be established, as hereinafter provided, that such judge is prejudiced against any party or attorney. ’ ’ Bern. Code, § 209-1.
The after provisions of the statute are:
“Any party to or any attorney appearing in any action or proceeding in a superior court, may establish such prejudice by motion supported by affidavit that the judge before whom the action is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge.” Bern. Code, §209-2.
We think the statute clearly contemplates that the affidavit may be made by the attorney or by the party, whichever it may be who has knowledge of the fact or who is willing’ to affirm a belief that a fair and impartial trial cannot be had before the presiding judge. The affidavit was made by counsel without challenge on that account in Garvey v. Skamser, 69 Wash. 259, 124 Pac. 688.
It is also claimed on behalf of the respondent that the affidavit is insufficient in that facts showing prejudice are not set out, and that the first motion—and which we are inclined to consider as controlling—is made on information and belief. Emphasis is put upon the word “established,” and it is contended that
“The prejudice spoken of in the act, as we construe the statute, is a personal prejudice against the litigant or his attorney, and if the litigant or his attorney believes that such prejudice exists, no matter whether there is any foundation for the belief or not, the writ must be granted under the provisions of the statute. ’ ’ State ex rel. Lefebvre v. Clifford, 65 Wash. 313, 118 Pac. 40.
An affidavit on information and belief is within the statute which permits a showing of no more than a belief that a fair and impartial trial cannot be had. Garvey v. Skamser, 69 Wash. 259, 124 Pac. 688.
We do not attribute merit to the suggestion' that the filing of a motion to make more definite and certain is such an appearance as to amount to a submission of the cause to the presiding judge. The only question we have ever been inclined to raise is whether the motion is timely made. We have held that a party may not invite a ruling, and being then dissatisfied, file an affidavit of prejudice. State ex rel. Deavers v. French, 78 Wash. 260, 138 Pac. 869; State ex rel. Nixon v. Superior Court, 87 Wash. 603, 152 Pac. 1. But we are not inclined to hold that an appearance by way of motion, demurrer, or answer may not be cotemporaneous with or be followed by an affidavit of prejudice, if the court has not theretofore made any
It is suggested that the filing of a second motion was a waiver of the first, and that the second motion cannot be considered by the court because the statute provides that “no party or attorney shall be permitted to make more than one application in any action or proceeding under this act.” But this argument is unavailing. If the first motion was well taken, it should have been granted, but if not well taken, for the reasons assigned by counsel, it was an abortive attempt and had no legal force or effect. So that, whether we say the first motion was good or bad, the legal situation remains the same. If the first motion was good, it should have been granted; if it was bad because it was not a sufficient motion under the statute, the second motion was timely and its form is not challenged.
Reference to our decisions will disclose the-fact that mandamus has been the accepted remedy in this class of cases. The writ will issue.
Mount, Mitchell, Tolman, and Holcomb, JJ., concur.