128 P. 584 | Mont. | 1912
delivered the opinion of the court.
For some time prior to September 16,1912, this cause had been pending and at issue in department No. 1 of the district court of Silver Bow county, presided over by Judge Lynch. An affidavit disqualifying Judge Lynch under the provisions of subdivision 4 of section 6315, Revised Codes, was filed, and on September 16, 1912, this order was entered in the minutes of the court: “Washoe Copper Company, a Corporation, versus Edward Hickey, as Administrator, et al. This day it appearing to the court that the Hon. Jeremiah J. Lynch, Judge of Department One of this court, having been disqualified from trying this cause, and thereupon by agreement of the respective counsel, the Hon. W. R. C. Stewart, Judge of the Ninth Judicial District, is by the court called in to try this cause, and the trial of this cause is by the court continued for hearing until Monday, October 2d, 1911.” On September 30, Daniel T. Lewis, one of defendants, filed an affidavit of disqualification against Judge Stewart, under the provisions of the statute above. On October 2, when Judge Stewart appeared in court for the trial of this cause, his attention was directed to the Lewis affidavit and also to the minute entry of September 16, and then, over the objections of defendants, he proceeded with the trial. From a judgment in favor of plaintiff the defendants appealed, and present for our determination the question: Had Judge Stewart authority to preside at the trial of this cause ?
1. The filing of the Lewis affidavit ipso facto worked a
2. That the minute entry of September 16 correctly recites the facts is not controverted; but counsel for appellants insist that the entry does not disclose a waiver, and, if it does, public policy forbids its enforcement. When Judge Lynch was disqualified,
3. That counsel for both parties agreed to try this cause before Judge Stewart does not admit of doubt. Upon any other theory the language of the record is meaningless. Why should there be a recital that Judge Stewart was called by agreement of counsel ? Such an agreement would not add anything if Judge Stewart was merely called in subject to the same objections which might have been lodged against a judge who was called without the knowledge of the parties or their counsel. But Judge Stewart was not merely called into the case. He was called “to try the cause” by agreement of counsel.
4. The situation of a trial judge is somewhat similar to that of a juror. A litigant may exercise his challenge for cause as against the prospective juror, and may likewise disqualify the sitting judge for cause under the first three subdivisions of section 6315 above. But in either instance the particular ground of challenge must appear. To disqualify a judge under subdivision 4 above, the litigant is not required to state any facts upon which his claim of the judge’s bias or prejudice is founded, and in this aspect of the ease the proceeding is analogous to that invoked in the exercise of a peremptory challenge to a juror. It is not the bias or prejudice which works his disqualification, but the mere filing of the affidavit in time, even though the judge against whom it is aimed he entirely free from either charge. When the challenges to the jurors for cause are completed and counsel for the respective litigants announce: “We agree to this jury,” this would constitute a waiver of every peremptory challenge by
5. That the attorney for defendants had authority under his
6. The record evidence was ample to sustain Judge Stewart in the course of action which he pursued, and therefore no harm could result from receiving the other evidence.
7. The mutual benefit flowing to each party by having the
8. Section 6181, Revised Codes, provides: “Anyone may waive the advantage of a law intended solely for his benefit. But a law
Judge Stewart was authorized to proceed with the trial of this cause, and the judgment of the district court is affirmed.
Affirmed.