4 Nev. 218 | Nev. | 1868
Lead Opinion
By the Court,
This is an appeal from an order overruling a motion for a change
The second affidavit merely shows that affiant, in 1867, had a conversation with the Judge, in which he (the Judge) said he'had an interest in this mining claim. This was all the testimony offered, and on this showing the Court refused to grant the change of venue. The defendant excepted, and appealed from the order denying the motion. Under our statute such an appeal is authorized; and the question is: Should the Court have granted the order for a change of venue upon this showing? The first affidavit amounts to nothing; it states merely the belief of the affiant, without stating any of the facts on which that belief is founded, or any person from whom he may have learned any facts regarding the matter. This is too loose and uncertain. It is even doubtful whether the second affidavit is any better. The witness merely details a conversation of the Judge. Is such conversation sufficient evidence of the truth of what is said ? Is the mere declaration of the Judge that he was an owner in the mining grounds of the defendant sufficient to establish the fact that he was such owner ? Without determining this question, let us for the argument assume that it was proved that in 1867 the Judge owned an interest in the defendant’s mine. If he did own an interest' at that time, but sold out or abandoned his claim before the commencement of this suit, , it would not disqualify him.
When a certain state of facts is proven to have existed, the legal presumption is that the same state of things continues to' exist until that presumption is rebutted by proof or some counter presumption, arising from lapse of time or some other circumstance. If it was proved that the Judge was interested in defendant’s claim in 1867, the legal presumption would arise that he continued
If the Court could not act on counter affidavits, of course it could not on the personal knowledge of the Judge. But in a case where it would be proper to introduce counter affidavits we think a different rule should prevail. It might not be proper for a Judge to act on his own personal knowledge of facts in one class of cases, and yet perfectly proper in other cases. For instance : if a Judge were trying an action at law without the intervention of a jury, and evidence were introduced as to the value of a piece of
. As a general thing a Judge must know better than any third party whether he is or not interested in the result of a suit before him. Where an application is made for a change of venue on the ground that the Judge is interested, and the only proof is that he was interested in the mining claim in controversy a year before the suit was brought, and the motion is overruled, we will, in support of the judgment in the Court below, presume that the Judge acted on his own knowledge that at the time the suit was instituted he had no interest.
In holding that a Judge may act on his own knowledge in such a case, we think we are fully sustained by the opinion of the Court in the case of Hungerford v. Cushing, (2 Wisconsin, 397).
The defendant in this case applies for the change of venue, and it is alleged that the Judge had an interest in common with defendant. If he was so interested, no doubt the defendant would have the strict legal right to a change. But the circumstances of this application tend to show a desire to procrastinate the time of trial rather than a fear of any unfairness on the part of the Judge before khom the case was pending. In this case it is but justice
We are asked by the respondent to impose damages for a frivolous appeal. Possibly the circumstances of this case would justify such a course, and if we fail to give damages now, we wish it distinctly understood that hereafter, when appeals are taken from an order denying a change of venue, we will require the appellant to show a reasonable ground for his appeal, or impose damages for the delay caused the respondent in the trial of the case.
Order of the Court below affirmed.
Concurrence Opinion
I concur in the judgment, but on the distinct ground that the affidavits are wholly insufficient for the purposes of the motion. The fact to be made appear on the hearing was, that the presiding Judge was interested in the case. The views taken by my associates in respect to the first affidavit meet my full approval, and as to the other one, we only differ in this: — that whilst they doubt its sufficiency, I have no hesitation in holding, without qualification, that it is not sufficient. In my judgment the second affidavit should not be extended beyond what it really states, to wit: — that Judge Haydon had some time before stated to affiant that he was the owner of 25 feet of mining ground in the claims of defendant. It at most but establishes the fact that the Judge made the statement, and were the controversy one to which he was a party, the evidence would be admissible as tending to show the fact that he was an owner at the time stated. But not so when the controversy is between others. Such an indirect mode of establishing the material fact — that he was an owner in the mining claim — cannot be done in this way, under existing circumstances. It comes within the class of hearsay evidence, “ which is uniformly held incompetent to establish a specific fact which, in its nature, is susceptible of being proved by witnesses, who can speak from their own knowledge,” or any documentary evidence which the machinery of the law affords
I furthermore concur in the views expressed in the foregoing opinion in respect to the application for damages.