| Mont. | Jun 5, 1894
This is an application for a writ of prohibition to prevent the respondent, judge of the fourth judicial district court, from trying a certain proceeding, which is described in the petition. That proceeding is an application by some of the creditors of the estate of W. J. McCormick, deceased, for the removal of the relator as administratrix of the estate. She alleges in her application for a writ of prohibition that the judge of the court, Hon. Frank H. Woody, should be prohibited from trying this case, for the reason that he is disqualified. This disqualification she finds in the following facts, which she alleges: “ That the said Woody, the said judge of said court, was for a long time after the death of said decedent, W. J. McCormick, the retained attorney and advisor of this affiant, as such administratrix, and, as such attorney, attended to various matters and business for the said administratrix and said estate; and that the said Frank H. Woody, said judge of said court, in due time after appointment of this affiant as such administratrix, presented, and there was allowed to him, a claim against the said estate in the sum of seventy-one dollars, and which said claim and demand has not been paid, but now stands as a valid and existing claim and demand against the said estate; and that, by reason thereof, he, the said judge, is interested in the said estate, and is thereby disqualified from acting in any manner as the presiding judge therein.”
Without suggesting an opinion as to whether the"writ of prohibition is the proper remedy (for such question has not been raised or argued), we will notice the question of the alleged disqualification of the judge. There are practically two grounds set out: 1. That Judge Woody had been counsel for the administratrix; and 2. That he is interested in the estate
As to the first ground, the statute provides (Code Civ. Proc., § 547) that a judge shall not act as such in an action or proceeding when he has been attorney or of counsel for either party in the action or proceeding. But Judge Woody has never been attorney or of counsel for either party in the action or proceeding which the relator wants him prohibited from trying. That proceeding was brought to remove the relator as administratrix. It does not appear that relator is sought to be removed on any thing that occurred while Judge Woody was her counsel. We are of opinion that the statute (§ 547) does not mean that, if a judge has once been an attorney or of counsel for a person he shall, if he afterwards become judge, be forever prohibited from acting as judge in cases in which such person may be a party, and in which cases the judge has not been attorney or of counsel, and in which he has taken no part whatever. If such construction of the statute were to obtain, the judges of courts would be disqualified in a very large proportion of the cases which came before them; for judges are elected from among the practicing lawyers of the district, and, in' the course of their lives as practitioners, have been attorneys and of counsel for large numbers of persons in their district. It is not intended that the judge shall be disqualified because he has once been an attorney for a party litigant, in a matter other than that proposed to be litigated before him.
The statute also provides that the judge shall not act as such in an action or proceeding in which he is interested. It is set up that Judge Woody has a claim of seventy-one dollars against the estate of which relator is administratrix, and from which pifión she is sought to be removed. This claim of Judge Woody was for services to Mrs. McCormick as administratrix, and had been allowed against the estate. The question here is not as to the estate itself. It is not as to claims against the estate or in favor thereof. It is not as to allowing Judge Woody’s debt, or any other. But the contention for trial before the fourth judicial district court is as to the removal of Mrs. McCormick as administratrix. Is the fact that the judge
It does not appear that the estate will not pay all of its debts in full, or that such a result is likely or possible; and it does not appear that the retention or removal of the relator as administratrix could affect the debt-paying qualities of the estate, either favorably or unfavorably. Indeed, it does not appear that Judge Woody’s allowed claim of seventy-one dollars against the estate can be affected in any manner, proximately or remotely, directly or indirectly, in the proceeding brought for the purpose of removing the administratrix; nor does it appear that Judge Woody is one of the creditors seeking her removal, or in any way interested, in said proceeding.
We are satisfied that there is no showing in this application that Judge Woody is disqualified. The writ will therefore be denied.