215 N.W. 680 | N.D. | 1927
The respondent is the judge of the county court of Cass county, a court with increased jurisdiction. Petitioner was charged in said court with "wilfully and unlawfully having in his possession intoxicating liquors." This action was on the calendar for the June term of 1927 and during that term the petitioner filed an affidavit of prejudice against the respondent, under the provisions of § 8955 of the Compiled Laws of this state, but change of judge was denied as the affidavit was not filed before the commencement of the term. The petitioner then moved for a continuance of his case over the term, which motion was granted. Prior to the opening of the October term, and on the 29th day of August, 1927, the petitioner filed another affidavit of prejudice against the respondent. It is alleged by the petitioner, and not denied by the respondent, that the respondent has announced he will not consider this second affidavit but will proceed to try the case. The petitioner, upon learning the attitude of the county judge, applied to this court for a writ of prohibition and an alternative writ was issued. The respondent admits all of these facts, except that he does not say he refuses to consider the affidavit. Nevertheless, he does not deny the allegation that he has stated he intends to proceed and try the case himself. On the return day the respondent moved to quash the alternative writ for lack of jurisdiction on the ground the petitioner has an adequate remedy by appeal from any final judgment, and in case this motion be denied he filed his answer raising but two questions in his return — that the affidavit of prejudice filed August 29, 1927 is not such affidavit as is contemplated by § 8955 of the Code, and, that the petitioner has an adequate remedy at law.
It is the contention of the respondent that § 8955 contemplates no affidavit of prejudice can be filed after "the first term at which any cause is triable;" and that such provision cannot "apply to any term to which a case has been continued at the request of the party to such action." Our statutory provisions with reference to affidavits of prejudice differ from those of many states. In many of the jurisdictions affidavits of prejudice are presented to the judge, counter affidavits may be filed, and it is for the judge to determine in the first place whether the application *894 should be granted for the cause stated. This is not the principle underlying our statutes and for that reason many of the decisions of other jurisdictions are not applicable to cases in this state. The language of the statute is plain. It says "whenever the defendant in a criminal action shall, before the opening of anyterm in which the case appears upon the calendar for trial, file his affidavit . . . the court shall thereafter proceed in such action as follows:" and then proceeds to give to the judge the option of procuring another judge to try the case, or of certifying all proceedings to the district court.
The respondent says the concluding sentence of subdivision 3 of § 8955 precludes the petitioner from filing this second affidavit; that the statute contemplates the filing of the affidavit before the opening of the first term in which he could file it; and that his "failure to file the affidavit of prejudice hereinbefore mentioned within the time before specified . . . shall constitute a waiver of all objections to the trial of such action by the presiding judge of such county court." This sentence means, the "failure to file the affidavit of prejudice" before "the opening day of any term in which the case appears upon the calendar for trial" shall constitute a waiver. It does not limit the filing to the first term. It was a customary proceeding in many jurisdictions to permit the filing of such affidavits at any time before the commencement of the trial. This, however, was unfair to the State and was taken advantage of for delay. To prevent this abuse, and at the same time give the defendant the opportunity of being tried before a judge whom he believed to be unprejudiced he was required to file the affidavit before the opening day of the term; rather than before the commencement of the trial. Under the old rule it was immaterial how many terms the case was on the calendar. It is immaterial in this case. So long as the case is on the calendar of any term for trial the affidavit may be filed before the opening day of that term.
The other contention of the respondent is that petitioner has an adequate remedy at law. It was the manifest duty of the respondent to call in another judge upon the filing of an affidavit alleging prejudice. State v. Kent,
"A writ of prohibition will lie to restrain a judge from proceeding in an action in which he is disqualified . . . although the court over which he presides may have jurisdiction of the case." In such case "an appeal would not be a speedy and adequate remedy." North Bloomfield Gravel Min. Co. v. Keyser,
For an exhaustive analysis of the supervisory powers of this court, the question of adequate remedy, and under what circumstances this power will be used to control litigation in the lower courts, see the treatment of this subject by Judge Christianson in State ex rel. Lemke v. District Ct.
The petitioner is entitled to a writ of prohibition requiring respondent to desist from further proceedings in this case except to procure another judge, or to certify the case to the District Court in accordance with the provisions of § 8955 of the Code, as he may deem proper.
BIRDZELL, Ch. J., and BURKE, CHRISTIANSON, and NUESSLE, JJ., concur. *897