152 P. 753 | Mont. | 1915
delivered tbe opinion of tbe court.
Supervisory control. W. B. Dolenty died testate in Broad-water county in 1910, and on November 22 of that year tbe district court of tbe fourteenth district, sitting at Townsend, in Broadwater county, having jurisdiction of the estate, admitted tbe will to probate, and in accordance with tbe wish of tbe decedent as expressed therein, appointed Isabel Dolenty, the surviving wife, executrix. As required by tbe order of appointment, she gave bond in tbe sum of $50,000. Since that time tbe estate has been in process of administration. Though, as shown by tbe report of tbe appraisers, tbe value of the estate was $109,345.26, tbe testator was greatly in debt, to such an extent, in fact, as is apparent from tbe several reports of the executrix made from time to time exhibiting tbe claims of creditors and
Whether it was within the power of Judge Clements to make the orders complained of depends upon what power he acquired
Under our plan of government, the people are entitled to be served by officers of their own choice. This statement is exemplified by the various provisions of the Constitution for local government through the instrumentalities of counties and municipalities by the people residing in them. It is also exemplified by the provisions relating to the creation of judicial districts and the election of a judge in each of them by the people residing therein to preside over the court held at the seats of the respective counties constituting the district. As an officer of one county cannot exercise any official functions in any county other than that in which he was elected, neither may a district judge act judicially in any district other than his own or in relation to any matter pending in court therein in any county, except when authorized by law to do so, and in the manner and under the limitations prescribed. On this subject this court, in Wallace v. Helena Ry. Co., 10 Mont. 24, 24 Pac. 626, said: “It will be observed that the Constitution defines the jurisdiction of the district courts and of the judges thereof, and provides for one judge in each district to exercise these judicial powers, in holding court and otherwise, as prescribed by the Constitution. The judicial powers of the district judge for each district are committed to one chosen person, with the provision that ‘any judge
The provisions for temporary service by a judge in another district than his own, and for change of venue in particular cases and .proceedings, were devised to meet conditions which render it impossible or improper for the local judge, because of his interest or other disqualification, to take cognizance, or render it improbable that one or the other of the parties to a controversy can have a fair and impartial trial when a jury is necessary, and a jury free from prejudice which exists in the county cannot be had. And, though these provisions relating to judges confer powers, they confer them with limitations express and implied.
A judge cannot act officially in another district, except when requested by the proper authority to do so; and the power with which he thereby becomes vested, except as hereafter noted, continues only while he is actively engaged in exercising his judicial functions pro tempore.
The extent of a judge’s power at chambers is defined by section 6314 of the Revised Codes: ‘ ‘ The judge of the district court may at chambers issue, hear and determine writs of mandamus, quo warranto, certiorari, prohibition, injunction and other original and remedial writs, and also all writs of habeas corpus on petition by, or on behalf of any person held in actual custody in his district, and grant all orders and writs which are usually granted in the first instance upon an ex parte application, and, at chambers, hear and dispose of such orders and. writs; and may
Judge Clements therefore had no authority to make the several orders complained of. So far as the record shows, Judge Matthews was present in his district at the time they were made. He was not disqualified. Jurisdiction of the Dolenty estate was vested in him, and Judge Clements had no right to interfere.
There is nothing in the case' of Farleigh v. Kelly, supra, upon which counsel rely to justify his action, or that will uphold it in any particular. It merely decides that, when a local judge, because disqualified has called in another judge to try a particular case the substituted judge may make an order at chambers in his own district extending the time in which to prepare and serve a bill of exceptions on motion for new trial. And,
It remains to inquire whether this court should grant the
While Judge Clements is sitting in Helena his power is co-ordinate — that is, equal in rank — with that of Judge Matthews at Townsend, or that of any other judge sitting in his place.
All of the orders complained of, save one, were apparently made by Judge Clements while presiding in Townsend. These are therefore fair upon the face. The order relating to the sale to Laura T. Galen is not; for the order fixing the time for hearing on the report of sale fixed the place of hearing at Helena.
There has been suggested to us no reason why this court should not under its supervisory power grant summary relief from
Therefore the district court is directed to set aside the order denying relator’s motion and to enter an order vacating and setting aside the orders complained of.
Writ granted.