141 P. 659 | Mont. | 1914
delivered the opinion of the court.
On August 26, 1913, A. S. Lohman commenced an action in the district court of the twelfth judicial district of Montana, in and for Blaine county, against the town of Chinook. A demurrer interposed by the defendant was submitted to the court, Judge Tattan presiding, and overruled, and an answer which brought the case to issue was then filed. On February 21, 1914, the court, Judge Utter presiding, set the cause for trial for March 21, at a term of the court to be presided over by Judge Utter. On February 28 plaintiff filed an affidavit disqualifying Judge Utter, and on March 2 an order was entered by the disqualified judge, calling Judge Tattan to try the ease, which was then reset for April 9. On April 3 plaintiff called up before Judge Utter his motion for change of venue, which motion had been filed on February 28, but the court overruled it, and this proceeding was thereupon instituted. In his affidavit, after reciting the history of the ease, the relator alleges that Judge Tattan did not appear in Blaine county or assume jurisdiction of the case of Lohman v. Town of Chinook for a period of thirty days after the motion for change of venue was filed, or at all. An alternative writ of mandate was issued, and upon the return Judge Utter, for himself and the court, presented an answer, in which he sets forth that, while
Counsel for respondents have not submitted any briefs or written argument; but in the answer filed certain questions are sought to be raised, and these will be treated in their order.
1. It was not necessary for the plaintiff (this relator), when
2. The date of the disqualifying affidavit is not of eonse
3. Judge Utter’s position that he was without authority to grant the motion for a change of venue is not well taken. The
4. When Judge Utter was disqualified by the filing of the
5. Having determined that it was the duty of Judge Utter to change the venue of the case of Lohman v. Town of Chinook, the only remaining question suggested is: To what court should
6. The authorities are quite unanimous in holding that the
Tested by these rules, the relator is entitled to the relief sought, and a peremptory writ will issue forthwith.-