32 Mont. 256 | Mont. | 1905
delivered the opinion of the court.
Much was said during the argument in this court as to whether, under the rules adopted by the judges for the apportionment of business and the assignment of judges, Judge Mc-Clernan had authority to make the order reserving to his department the determination of the controversy over the execu
There is nothing in the record to indicate that at the time the rules were promulgated, and the apportionment of business made, any exception or reservation was discussed with the other judges or made by Judge McClernan in any manner whatever. Apparently the rules were deemed final, for the time being, and to distribute all business then pending in the court. While the judges exercising their duties in their respective departments must, for some purposes, be regarded as presiding over different courts, yet the court is in fact one court, and has jurisdiction of all matters which may properly be brought before it. The assignment of this or that portion of the business to one department still leaves it pending in the district court, so that jurisdiction is not in any sense of the word, lost by the fact that it may have theretofore been pending in another department or before another judge. If a cause or proceeding pending in any department is in such condition that another judge than the one who regularly presides there may be called in to assume jurisdiction and dispose of it, then such business might likewise be transferred from that department to another, and the judge who presides in the latter would have the same power to proceed with it as would the judge in the department from which the particular matter was transferred.
Rules regulating the distribution of business under the conditions prevailing in that court are a necessity, and could hardly be dispensed with, for by no other means could un
Ostensibly, the rules promulgated by the judges on February 8th were in full force, and no reason appears why they should have been disregarded. But even in the absence of rules, after the business has been distributed by an order of court concurred in by all the judges, such order should be held binding until revoked or modified by the same authority which made it. In this way only may an unseemly conflict of authority be avoided. But this is somewhat of a digression.
The particular ground of the present application is that Judge Donlan lost jurisdiction because of the filing of the affidavit imputing bias and prejudice by reason of which the relators could not have a fair trial of the issues presented by the motion or of any matter in the course of the administration.
Two questions, therefore, arise for decision: (1) Does section 180, as amended, apply to probate proceedings? And (2) Was the affidavit filed in time to disqualify Judge Donlan from proceeding to a conclusion of the particular matter under consideration ?
The contention is made by respondents that the amended section has no application to probate proceedings. This view is based upon the fact that the Probate Practice Act contains a specific provision declaring the disqualifications of district judges in probate matters (section 2530, Title XII, Article IX, Chapter III, as amended by the Act of 1897, Laws 1897, p.244),
The Code of Civil Procedure was intended to be a complete system of practice and procedure, and to apply to every character of action or proceeding which might be brought in any court, and, except where special provisions are made in the particular Part or Title, the general provisions of Part II relating to civil actions apply, in so far as they are suitable. Where they cannot apply, and specific provisions are not made, then the courts are to be governed by the practice and procedure at common law, for the common law is the rule of decision in this state, except in so far as it is repugnant to the Constitution of the United States and of this state, or of the provisions of these Codes. (Political Code, sec. 5162.)
Doubtless section 2920, supra, was enacted for the purpose of fixing definitely the practice and procedure in probate proceedings, so far as possible, to carry out this idea, and set at rest any doubt that might otherwise exist as to the rules of practice and procedure applicable. This view is sustained by
Speaking, generally, Part I of the Code of Civil Procedure (sections 1-440) contains provisions necessary to constitute the courts, and defines the incidental powers of the courts and judges under the Constitution. It provides for terms of courts. It likewise defines the qualifications of jurors, and provides for the mode of selecting, drawing, and summoning them. It provides for the use of a seal by courts of record. It defines the qualifications necessary to enable one to be admitted to practice law in the courts of this state, lays down rules to regulate the conduct of attorneys and counselors, and provides for their removal from office when they have been adjudged guilty of conduct which renders them unworthy of confidence. This part of the Code therefore has to do with every phase of the administration of justice and the adjust-, ment of the rights of parties, whether in actions eo nomine or in special proceedings, civil or criminal, as defined in Part V. To say that it does not apply to probate proceedings is to say that, without express provision of law, probate proceedings— one species of special proceedings — are to be put into a class by themselves, and that we must look exclusively to the Title containing provisions with reference to them for the instrumentalities by which the rights of those interested must be determined. If this were true, then there would be no provision for terms of court applicable; no mode for selecting, drawing, and impaneling jurors, nor means for the regulation of the conduct of attorneys, nor authority for the use of a seal. Indeed, since this Part has to do with the constitution of courts,
Section 180, as amended, therefore, must apply to all proceedings provided for in the Code of Civil Procedure, unless a special provision is found in some part of it in conflict with that section, or the nature of the proceeding does not permit such application. Nor is section 2530, supra, either as first enacted or as amended (Session Laws 1897, p. 244), in conflict with any provision contained therein. Such additional disqualifications as are declared in the Act of 1897 are to be regarded as merely cumulative in character, and not exclusive.
It is true that this court, has construed amended section 180 as not applicable to contempt proceedings, though they are provided for in the Code of Civil Procedure. (State ex rel. B. & M. etc. Min. Co. v. Clancy, 30 Mont. 193, 76 Pac. 10.) This construction was based upon the theory that contempt proceedings are criminal in character, that the original section did not apply to them, and that the amended section-does not apply in the absence of an express declaration to that effect. There is nothing in that case in conflict with the views here expressed, for, although probate proceedings are special and statutory in their character, they must be classed among proceedings of a civil ’ nature. The same reason for excepting them also from the application of the statute does not, therefore, exist. Besides, the Act itself, in terms, applies to all proceedings of a civil nature, as well as to actions in the stricter sense. •
Was the affidavit filed in time to disqualify- Judge Donlan from hearing the motion upon settling the account? It will be noticed that amended section 180 contemplates that once a judge has been found to be disqualified in an action or proceeding, he must not thereafter sit' in it at any stage of it. Such is the effect, also, of section 2530, as amended by the Act of 1897 with reference to probate proceedings. The latter sec
The uncontroverted fact is that the hearing of the motions ■filed with reference to the report of the referee was taken up ■on February 18th. How far it proceeded on that day does not appear. The hearing was then postponed, to be resumed at a later date. Under these conditions, we do not think that, for the purpose of the proceeding then and now before the district ■court, the affidavit was filed in time, or that Judge Donlan thereby lost jurisdiction to proceed. The statute does not admit of a construction that would permit a litigant to filé an affidavit of disqualification after the day for hearing has arrived, and thus rob the court or judge of the power to proceed.
Por the reasons stated, we are of the opinion that there is no merit in this application. The alternative writ heretofore issued herein is vacated and set aside, and the proceedings dismissed. -
Dismissed.