B. A. GAMBLE and F. T. CHADBOURNE, Petitioners, v. THE FIRST JUDICIAL DISTRICT COURT, et al., Respondents
Gamble v. First Judicial District Court
Fitzgerald, J.: I concur.
B. A. GAMBLE and F. T. CHADBOURNE, Petitioners, v. THE FIRST JUDICIAL DISTRICT COURT, et al., Respondents.
[No. 1644.]
B. A. GAMBLE and F. T. CHADBOURNE, Petitioners, v. THE FIRST JUDICIAL DISTRICT COURT, et al., Respondents.
Venue of Actions — Change—Disqualification of Judge — Mandamus.
J. Under Comp. Laws, seo. 2546, providing that a judge shall not act as such when he has been the attorney of either party in the proceeding, it is the duty of a judge who has been of counsel for a party to change the place of trial to some other judicial district.
2. Mandamus will issue to compel a judge who was of counsel in an action previous to his appointment as judge to change the place of trial of such action to some other judicial district, although no motion for that purpose was ever made in open court, where the application for the change, signed by petitioner’s attorneys, was presented to the judge, the originals later being properly filed, and the motion for removal was informally made, dud a list of authorities forwarded to him, ho being engaged in judicial duties in another county, and, from his reasons for refusal, it was evident that he would not have granted (lie motion, had it been formally made.
Taddot, J., dissenting.
Application for writ of mandamus by B. A. Gamble and F. T; Oliadbourne against the District Court of the First Judicial District of the State of Nevada, Esmeralda County, and M. A. Murphy, the Judge thereof.
Application granted.
The facts sufficiently appear in the opinion.
Bigelow & Dorsey, Ge-o.W. Baler, and B. M. F. Soto, for Petitioners:
I. No affidavit was required to show the disqualification of the honorable judge of this court. The fact of his disqualification being the matter within his own personal knowledge, as a judge of this court, he would take judicial notice thereof. {Allen v. Reilly, 15 Nev. 452, 455-6; Table Mt. Co. v.W. D. S. Min. Go., 4 Nev. 218, 221, 222; Southern Co. v. Nat. Bank, 100 Cal. 316, 321; State v. Blake, 38 Pac. 354, 357; ■Foley v. Brewing Co., 89 N. W. 230.)
II. Section 2545 of Compiled Laws of Nevada provides in part: "A judge shall not act as such: * * * Third, when he has been attorney or counsel for either party in the action or proceeding, but this section shall not apply to the arrangement of the calendar or the regulation of the order of business.” The provision of section 3116, Compiled Laws, that upon the existence of certain conditions the court may, on motion, change the place of trial, "must,” as was said in Estate of Walley, 11 Nev. 260, 263, "on a familiar principle of construction be considered as imperative and mandatory as if it had read: "The court-must, on motion, change the place of trial.” (Black, Interp. 155, 156, 338, 341-342; Maxwell, Interp. 2d ed. 295, 296, 299-300; Endlich, Interp. secs. 310-311, pp. 423, 424; Sutherland, Stat. Cons, secs. 461, 462; Estate of Ballentine, 45 Cal. 696, 698-699; In re Still, 117 Cal. 509, 513; Malcolm v. Rogers, 15 Am. Dec. 464, 467, 468, note.)
III. The statute is mandatory and prohibitory where the judge of the court is disqualified. It is prohibitory to the extent of depriving him of all power or jurisdiction to act judicially in any matter affecting the merits of the action pending before him; and it is mandatory so that, the fact of disqualification being conceded or established, he is compelled to change the place of trial. If the change is refused, any judicial act of the court, while presided over by the disqualified judge, is null and void. Nor can consent, unless the statute so provides, confer jurisdiction on the disqualified judge. {Frevert v. Swift, 19 Nev. 363, 364, and cases there cited; Oakley v. Aspinwall, 3 N.Y. 547-552; Reams v. Kearns, 5 Caldw. 217, 219; Slaven v. Wheeler, 58 Tex. 23, 26; Hall v. Thayer, 105 Mass. 219; Newcome v. Light, 58 Tex. 141, 145, 146, 44 Am. Bep. 604; Cooley, Const. Lim. 6th ed. 509; Freeman on Judgments, sec. 146; Black, secs. 174, 266; Gains v. Barr, 60 Tex. 676, 678; Horton v. Houm-d, 79 Mich. 642, 644-647, 44 N. W. 1112-1113; Krutz v. Howard, 70 Ind. 71-76.)
IV. While the statute permits one district judge to hold court in a district for which he has not been elected, either upon the request of the judge of the latter district, or upon the direction of the governor, under certain circumstances, the cases in which such foreign judge may sit must be cases other than those in which the law prescribed a change of venue on the application of either of the parties. (Krumdiek v. Grump, 98 Cal. 117, 119; Gale v. Mi chi e, 47 Mo. 326; Graham v. People, 111 111. 253, 258-259; Kansas Pac. Ry. Go. v. Reynolds, 8 Kan. 622.) Unless the statute provides for the calling in of another judge to pass on the application for a change of venue on the ground of the disqualification of the judge of the court before which the cause is pending, such alleged disqualified judge may grant the application. (Shannon v. Smith, 31 Mich. 451, 453; State v. Thompson, 141 Mo. 408, 414, 42 S. W. 949; Slaven v. Wheeler, 58 Tex. 23, 26; Reams ,v. Kearns, 5 Caldw. 217, 219.)
Y. In fact, when the fact of disqualification is conceded or established beyond controversy, the duty of the court, acting through the disqualified judge, is treated as ministerial, so that mandamus will lie to compel a change of venue. There is no discretion in the matter when the fact of disqualification is established or conceded. {lAvermorey. Brundage, 64 Cal. 299, 300; Krumdiek v. Grump, 98 Cal. 117, 119; State v. Castleberry, 23 Ala. 65; State v. Shaw, 1 N. E. 753, 43 Ohio St. 324; Graham v. People, 111 111. 253, 259; State v. Mack, 69 Pac. 862, 863.)
. YI. The fact that the cause is not at issue upon questions of fact is no reason for denying the application to transfer the cause to a county in some other district whose judge is not disqualified. The pleadings are not settled yet, and the honorable judge of this court cannot sit to pass upon questions relating to them. (People v. l)e la Guerra, 24 Cal. 73, 77.) The prohibition of the statute is universal that the judge, being disqualified, shall not act in the cause at all. (Comp. Laws. sec. 2545; Frevert v. Swift, 19 Nev. 364; State v. Mack, 69 Pac. (Nev.) 862, 863.) The determination of a demurrer interposed to a pleading in the case, or a motion in relation thereto, or any other matter affecting the merits or substantial rights of the parties would constitute a trial so as to bring the case within the statute (Comp. Laws, sec. 3116) providing for a change of venue in case of the disqualification of the judge. (Allerton v. Mclridge, 10 N. W. 252, 254, 56 Iowa, 709, 712; Finn v. Spagnoti, 67 Cal. 330, 332; -Tregambo v. Comanche M. <0 M. Co., 57 Cal. 501, 505; Anderson v. Fennie, 32 Cal. 263, 267; Black’s Law Diet. "Trial”; 21 Ency. PI. & Pr. 956; Gibson v. Sydney, 69 N. W. 313, 50 Neb. 12; Goldtree v. Spreckles, 135 Cal. 666, 668-672, and cases cited; Comp. Laws, secs. 3248-3252.)
VII. At one time a right to appeal from an order denying an application for a change of venue existed in this state. (Table Mt. Co. v. Waller’s Defeat Co., 4 Nev. 218, 220.) While the law was such, a formal application in court was imperative. But the right to appeal no longer exists. The fact of disqualification being conceded, known to the judge himself, no discretion exists. The transfer must be made. This rule was enforced in State v. Mack, 69 Pac. (Nev.) 862, 863. With greater force should it apply here where the respondent has been accorded every opportunity to act; and finally gives the applicant to understand that he will deny their motion, even, if formally made.
VIII. Where it appears conclusively from the conduct of the defendant that there would have been a refusal to comply if a demand had been made, no previous demand is necessary. (Northern Pac. li. Co. v. Washington Terr., 142 IT. S. 492; Columbia Co. v. King, 13 Fla. 451, People v. Barnett, 91 111. 422; Lake Frie li. Co. v. State, 139 Ind. 158; Chicago li. Co. v. Chase County, 49 Kan. 399; Muhlenburg County v. More-head, 56 S. W. 484; Atty.-Gen. v. Boston, 123 Mass. 461; Gicldings v. Blacker, 93 Mich. 1; Hilton v. Grand Rapids, 112 Mich. 500; State v. Baushause-n, 49 Neb. 558; Conklin v. Cunningham, 7 N. Mex. 445, 461, 462; In re Whitney, 3 N. Y. Supp. 838; Alexander v. McDowell County, 67 N. C. 330; Com. v. Pittsburg, 34 Pa. St. 496; Morton v. Comptroller-Gen., 4 S. O. 431; Reg v. Bruce County, 11 U. O. C. P. 575; Davidson v. Miller, 24 II C. Q. B. 66; People v. Mt. Morris, 137 111. 576.)
IX. It is respectfully submitted, however, that State v. Mack, supra, is applicable and should control. Here, at least, Judge Murphy was apprised months before this proceeding was instituted that the petitioners wished the cause transferred. Unless proof to the contrary is made, it must be presumed that Judge Murphy maintained the relation of attorney and client with Silver Peak mines. Indeed, he admits as much in his answer, where he says that he "was ready and willing at all times, * * * to and including the month of December, 1902, to enter the appearance of defendant, Silver Peak Mines Company.” {McKenzie v. Stevens, 19 Ala. 691, 692-693; Burlington Ins. Co. v. Threlheld, 60 Ark. 539, 543-544; McCullough v. BJicenia Ins. Co., 113 Mo. G05, 514; Talle ML Co. v. Waller’s Defeat Co., 4 Nev. 218, 220; Jordan v. Young, 37 Mo. 276, 280; Fox v. Ilolt, 4 Ben, 278, 281.)
Samuel Platt, for Respondents, and P. M. Bowler, Jr., of counsel, for Respondents .-
I. Compiled Laws of Nevada, section 3116, provides, inter alia, as follows: "The court may, on motion, change the place of trial in the following cases: * * * Fourth, when from any cause, the judge is disqualified from acting in the action.” It will be observed from the petition that relators filed a motion for a change of venue with the district clerk of Esmeralda county, the county within which the cause was originally brought. The motion was undoubtedly filed with the intention of formally presenting it to the district court of said county. The statute provides, sufra, that such a motion shall be made, and relators certainly so understood the law, or they would never have filed their motion. Admitting that the averments in their petition are correct, they even informed the trial judge in his office that they had filed such a motion; that he could draw no other inference or conclusion therefrom than that they intended to make such a motion in open court. This they failed to do, and respondent has never had an opportunity either to allow or refuse it. He is simply being harassed by an application for an extraordinary writ without any legal foundation whatsoever upon which to base the petition.
II. The petition is premature. In order for a peremptory writ of mandamus to issue, it is necessary to show conclusively that the respondent withholds compliance and distinctly determines not to do what is required. (Am. & Eng. Ency. Law, vol. XIX, 760, and authorities therein cited.) Mandamus will not issue before respondent is in actual default. {St,ate v. Rising, 15 Nev. 364, citing State, ex rel. Piper, v. Gracey, 13 Nev. 223.)
III. The fact that the petition for this writ'of mandamus is premature has been admitted more than once by counsel for petitioners herein. In all the affidavits of counsel, setting out their own views individually, in conference and by correspondence they have repeatedly indicated that a motion for a change of venue has been filed with the county cleric of Esmeralda county, State of Nevada, and that it was always their intention and purpose to present said motion to the respondent herein for consideration and decision. That they presume through private correspondence or informal advances to induce a judge to act judicially in a matter as important as the laying of a venue, is an assumption unwarranted in the practice, and, it is respectfully submitted, a proceeding which this honorable court will not encourage.
IV. Petitioners in their long list of authorities have failed to present a single case in point wherein a writ of mandamus issued before a formal application had been made to the nisi prius judge. An examination of many of the cases cited in their brief invariably shows that the extraordinary writ ■issued when the judge had refused to "grant the motion,” and never before he had had an opportunity to act. Counsel for petitioners look in vain for any authority of this court to grant the writ. In addition to the Nevada cases commented upon in the opening pages of this brief, and which upon examination will be found to be grossly inapplicable to the matter at bar, the case of State v. Bonnifield, 10 Nev. 401, has been cited. Here, the Supreme Court of Nevada refused to issue the writ because the respondent judge intended no evasion of duty and acted in good faith. The case is recommended as supporting respondent's contention herein. Relative to the case of State v. Mach, reported in the 26th Nevada, and decided by this honorable court only a short time ago, it is respectfully submitted that this case, while correctly stating the law and bearing all the imprint of a sound and logical judicial opinion, is not applicable to tlie ease at bar. The decision was based upon sections 2869 and 2870 of Compiled Laws of Nevada, and relates to the disqualification of a judge in probate matters in which he is directly interested. In such cases the statute provides without equivocation and in plain terms that, when a judge finds himself disqualified, he shall ipso facto call in another judge from another district to act for him. Here the statute provides that no motion shall be made, or rather does not provide that a motion shall be made, and the judge is bound to act of his own motion. It will be readily seen that the case has no application whatever to the case at bar.
V. The petitioners herein have a plain, speedy and adequate remedy at law. The authorities of the Supreme Court of the State of Nevada support the contention that an order of an inferior court, with jurisdictional powers equivalent to the district courts of this state, refusing a change of venue, may be appealed from to the supreme court of the state. Petitioners herein are not only taking a leap into the supreme court by jumping over the district court in avoiding their formal motion, but are petitioning for a remedy to which they have no legal right. The rule as to appeal has never been changed in this state since the case of Table Mountain Gold and Silver Mining Companyv. Waller’s Defeat Silver Mining Company, 4 Nev. 218, was decided. This case was substantially followed in Allen v. Reilly, 15 Nev. 452, 455-6, the question of a change of venue having been therein involved on appeal. Petitioners have therefore not only failed to exhaust their legal remedy before the nisi pr-ius judge, but, in the event of their failure to have secured the order desired, have ignored a legal appeal to this honorable court.
On Petition eor Rehearing.
Samuel Rlatt, for Respondents:
I. It is apparent from the majority opinion that the court treated the case precisely as if a formal motion had been made in open court for a change of the place of trial, and that an order had been entered refusing to change the place of trial, for this court said: "Under these circumstances a formal motion would have been useless.”
II. Respondent respectfully submits this petition for a rehearing upon the following grounds: (1) That mandamus is not the proper remedy; that where relator has another plain, speedy and adequate remedy, resort cannot be had to the extraordinary relief of mandamus-, (2) That there must be a default committed by respondent — an actual omission of duty — as an indispensable condition precedent before the peremptory writ of mandamus can issue; (3) That the judge of the district court, respondent, was and is disqualified, and thereby prohibited from acting in the case, except to arrange the calendar and to regulate the order 'of business of that court and to see that it is properly informed; (4) That the case of Krmidicksr. Grump, 99 Cal. 119, relied upon by this court, is a decision radically different in statutory laws from that which obtains in Nevada.
III. The particular office of the writ of mandamus is to compel action, but it cannot be to review and correct error of an inferior court. "Mandamus lies to compel an inferior tribunal to exercise its judgment and render a decision when a failure of justice would otherwise result from delay or a refusal to act, but it does not lie to compel an inferior tribunal to exercise its judgment in a particular way or to render any special decision in favor of one and against the other party to an action, for it will not lie to control discretion or revise judicial action. Where the act to be done is judicial in its character, the writ will not direct in what manner the inferior court shall act, but only to direct it to act.” (Keane. v. Murphy, 19 Nev. 92.) No formal motion was ever made, and whether useless or not, is not to be considered. There must be an actual omission of duty on the part of respondent before mandamus will lie. (State ex rel. Piper v. Gracey, 11 Nev. 223.)
IV. The only relief that could be obtained in this action on account of its peculiar situation and condition was and is for the judge of the district to do as is provided by section 2524, Comp. Laws, to request a district judge of another district to hold a term for him, at which this particular case and all incidental preliminary motions therein could be made and heard and the entire case tried and decision rendered.
V. While this court has heretofore held that a refusal of the trial court to order a transfer of the place of trial of an action for the reason that the showing made thereafter is insufficient or that such showing has been obviated by a counter showing and such refusal is error, but not such as an appeal will lie directly therefrom (Comp. Laws, sec. 3425; State v. Shaw, 21 Nev. 224), yet it may be properly brought before the court on appeal from the judgment, under section 3434, as an intermediate order involving the merits and necessarily affecting the judgment.
VI. Judge Murphy having been an attorney for one of the parties in an action pending in his court, it was his duty, even though no application therefor was made, at the proper time and in the proper place, to request or call in, and that too of his own motion, a judge of another district to act. In the event of an application to the court in that case by way of motion calling for the exercise of judicial discretion, he should refrain from acting, for, having been an attorney for one of the parties to the action, any act that he should therein perform as a court involving an exercise of judicial discretion would not be valid, but void, absolutely void, on account of his legal disqualification. Section 2545, Comp. Laws, provides "A judge shall not act * * * when he has been an attorney or counsel for either party in the action or proceeding, but this section shall not apply to the arrangement of the calendar or the regulation of the order of business.” Comp. Laws, sec. 2573 provides: " The district judges * ' * * shall each have power to hold court in any county in this state. * * * All of this section is subject to the provision that each judge may direct and control the business in his own district, and shall see that it is properly performed.” A consideration of the above statutory provisions obviously shows that the district judge of the First Judicial District has authority to direct and control the court business in his-own district, to the extent of arranging the calendar and regulating the order of business,, notwithstanding he may be otherwise disqualified. It must be apparent to this court that respondent has the unquestionable power and authority to request a judge of another district court to hold a term of court for him and in his place and stead, and that, too, at the option of respondent for or without cause and without limitation; and that in so doing he does not exercise any legal discretion whatever, but does it as of course. (Granite Mt. M. Go. v. Darfee (Mont.) 27 Pac. 919; Sterling Ditch Go. v. Iliff Platte Ditch, Go. (Col.) 52 Pac. 669; Gordon v. Gonnor (Idaho) 51 Pac. 747.)
VII. Under’ the California code, when a judge is disqualified he must transfer the cause (sec. 398), and by section 170 he cannot refuse to transfer the cause to another county, which he must do — a duty enjoined upon him by law, and which under no circumstances can be avoided. Not so in Nevada for, when a judge is disqualified in a case for having been an attorney therein, he shall not act as such, except to arrange the calendar, and regulate the business matters not calling for the exercise of judicial discretion.
By the Court,
Belknap, C. J. ;
This is an application for a writ of mandamus requiring respondent to order a change of the place of trial of an action now pending in the First Judicial District Court, in Esmeralda county, between petitioners, Gamble and Chadbourne, as plaintiffs, and L. J. Hanchett and others, as defendants, to some other district court in the state. It is admitted that respondent, lion. M. A. Murphy, was attorney for one of the parties to the action, andds now judge of the court.
The statute approved January 26, 1865, entitled "An act concerning the courts of justice and judicial officers," provides, at section 45 (section 2545, Comp. Laws), "A judge shall not act as such when he has been the attorney or counsel for either party in the action or proceeding. "
Applying the provisions of the statute to the admitted facts, it became the duty of respondent to change the place of trial to some other judicial district. His reasons for not directing the change are, first, that no motion for that purpose was ever made in open court; second, that upon October 5, 1899, long before he became judge, he entered into a stipulation with the opposing attorneys by the terms of which it was agreed that his clients should not be required to plead to a certain amended complaint until ten days after notice of service of said pleading upon all of the defendants, and that no notice of service of said pleading has been served; third, no attorney has been substituted for himself in the action.
It is uncontradicted that upon the 23d day of February of the present year one of the attorneys for petitioners delivered to respondent, in Carson City, two typewritten papers, one of which was an application for a change of the place of trial of the action, signed by the attorneys for petitioners, and the other was a copy of an affidavit of B. A. Gamble. Subsequently, on the 4th day of April, the originals of these papers were filed in the clerk's office of the District Court of Esmeralda county. On or about the 12th day of March the law firm of Cheney, Massey & Smith, at the request of Messrs. Bigelow & Dorsey, attorneys for petitioners, informally presented to respondent, at Reno, the motion for removal, and upon the 1st day of April forwarded a list of authorities bearing upon the question, and upon May 2d again called respondent's attention to the matter.
Finally, upon the 14th day of May, Former Judge Bigelow, one of the attorneys for petitioners, wrote respondent upon the subject of the transfer of the action. This proceeding in mandamus was commenced July 13th. The purpose of the motion was to direct the attention of the court to the order to be made. When these requests, as above shown, were made to respondent, he was not occupying the bench of his court in Esmeralda county, but was discharging judicial duties in Ormsby county, and in the county of Washoe, at the request of Judge Curler. But the purpose of the motion was accomplished bjr the repeated requests of counsel, and respondent could not have been more fully advised by a formal motion in open court.
It would better comport with the dignity of judicial proceedings for attorneys to present motions before the judge upon the bench, than in the informal manner pursued here; but loss of time, inconvenience, and expense in attending court at long distances to present an ex parte motion, to which no defense could be made, and in which respondent had no discretion, are considerations not to be overlooked by this court in the proper exercise of its own discretion in allowing or refusing this writ. In this connection, the letters of respondent and the affidavits on file support the conclusion that he would not have made the order if a motion for that purpose had been made in open court, for the reasons given by himself, to wit, the stipulation, with its surrounding facts, and because no attorney had been substituted for himself in the action. Under these circumstances, a formal motion would have been useless.
In Krumdick v. Crump, 98 Cal. 119, 32 Pac. 800 — a case somewhat similar — Chief Justice Beatty said: "There is nothing in any of the facts here recited to justify or excuse the respondent for refusing or neglecting to perform the' plain statutory duty imposed upon him by section 398 of the Code of Civil Procedure. The case provided for by that section was clearly made out by the uncontradicted affidavits filed in support of the motion,and,aside from the affidavits, the essential fact upon which the right to transfer the cause depended was necessarily within the knowledge of the respondent, whose duty it was to make the order without delay. (Livermore v. Brundage, 64 Cal. 299, 30 Pac. 848.) There should have been no postponement on account of the absence of the defendant, no continuances, no time given for the filing of briefs, no holding under advisement, no entertaining of any counter motions based upon grounds calling for. the exercise of judicial discretion. The plain injunction of the statute leaves the disqualified judge in such cases no discretion. lie has but one thing to do, and it is his duty to do that thing at once."
It is ordered that a peremptory writ of mandate issue.
Fitzgerald, J.: I concur.