Gordon v. Conor , 5 Idaho 673 ( 1897 )

QUARLES, J.

This is an appeal from an order made by the district court of the third judicial district sitting in and for Ada county, denying the motion made by the plaintiffs (appellants here) for a change of venue on the ground that the district judge was disqualified from acting as judge in the cause, he having been attorney for the defendants. Said motion was supported by affidavit. The defendants opposed the motion, and filed in opposition to the motion the affidavit of! John Lemp, the defendant, to the effect that the witnesses on behalf of the defendants (naming them) are numerous, and that said witnesses are business men residing at and engaged in business in Boise City, in said Ada county, and that the convenience of said witnesses required that the cause be tried in said Ada county. The motion was heard, and the district court made the following order, September 29, 1897: “This cause came on for hearing upon the affidavit of plaintiffs for a change of venue herein, and the counter-affidavit of defendants, this court being disqualified, and declining to act herein; D. D. Williams, Esq., and H. E. McElroy, Esq., appearing as counsel for the plaintiffs, and W. E. Borah, Esq., appearing as counsel for the defendants; whereupon said cause was argued before the court by the respective counsel, and thereupon counsel for the defendants agree in open court that the court may appoint any judge within the state, or any attorney of thi§ bar of his own choosing, or of the counsel for plaintiffs’ choosing, to try this cause; whereupon the court called on counsel for their authorities, and took the matter under advisement” — and on September 30, 1897, denied said motion by the following order, entered on the records of the court, to wit: “This cause having been heretofore taken under advisement by the court on plaintiffs’ application for a change of venue herein, whereupon the court ordered that said application be denied, and whereupon the court further ordered that the judge of this court will not sit in the trial of this cause, and that the court would enter an order herein calling in the judge of the fourth judicial district to sit in the trial of this cause at the next regular term of this court, to which district said cause is asked to be transferred, or would appoint any member of this bar against which there is no legal objection of plaintiffs and of plaintiffs’ choosing, to try this cause; to all of which order and ruling of the court counsel for plaintiffs except.”

By the provisions of subsection 4 of section 4135 of the Revised Statutes, it is the duty of the court in which an action is commenced, on motion made therefor, to grant a change of venue “when from any cause the judge is disqualified from acting.” Section 4126 of the Revised Statutes, provides that the change must be made to the court agreed upon by the parties, or, if they do not agree, the action, if pending in a district court, must be changed to another district court — the nearest court where the like 'objection or cause for making the order does not exist. Section 12 of article 5 of the constitution is as follows: “Every judge of the district court shall reside in the district for which he is elected. A judge of any district court may hold a district court in any county at the request of the judge of the district court thereof, and, upon the request of the governor, it shall be his duty to do so; but a cause in the district court may be tried by a judge pro tempore, who must be a member of the bar, agreed upon in writing by thej parties litigant, or their attorneys of record, and sworn to try the cause.” Upon the application and showing made, we think that the district court should have granted the motion, and changed the venue of the' action to the court that should be agreed on by the parties, or, if they failed to agree, then to the nearest district court where a like objection did not exist. Being disqualified, and baying so decided, the court below had no jurisdiction to pass upon any question in the ease involving judicial discretion. If a disqualified judge in a given cause may pass upon the question of the convenience of witnesses requiring the cause to be tried in a certain county, then he may, as such judge, pass upon all questions preliminary to the trial, act upon demurrers, motions to strike out pleadings or parts thereof, or reform the pleadings, shape the issues in the action, grant continuances, and do other acts prejudicial to the parties. The object of the law in granting a change of venue in any case is to give parties fair and impartial trials, where self-interest, the relation of client and attorney, or of kinship to one of the parties, on the part of the trial judge, will not place the other party at a disadvantage. The beneficent objects of the rule would be to a great extent defeated if a disqualified judge acts in such matters as usually arise in a cause prior to the trial.

But it is urged that no substantial rights of the appellants are affected by the order appealed from, and that the order, for that reason, should be affirmed. This contention is not, in our opinion, correct. The appellants are entitled to a speedy trial. True, the district judge of the third district might, under the constitution, request another district judge to come to Ada county, and try the cause; still it would be optional with the judge so requested, unless commanded by the governor, to come or not. And there is great probability that the judge so requested might be holding a term of his own court at the time when his presence in another district was so desired. Then it frequently takes considerable time to make up the issues, and attend to those matters which are preliminary to the trial, especially in equity cases, where the parties are numerous. And for these and other palpable reasons the substantial rights of the appellants were affected by the order in question. The parties had the power to agree upon a judge pro tempore to try the cause, but they did not do so. The court below, nor the judge thereof, has any power to compel the parties to agree upon a judge pro tempore, or to compel another district judge to come to Ada county, or to compel the governor to request another district judge to come to Ada county, to try the case at bar. The order appealed from is reversed, and the cause remanded, with instructions to the district court to grant plaintiffs’ motion for a change of Tenue. Costs of this appeal awarded to appellants.

Sullivan, C. J., and Huston, J., concur.