State Ex Rel. Johnson v. Thomson , 76 N.D. 125 ( 1948 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The Attorney General of North Dakota has applied to this court for a supervisory writ to review the action of the Honorable Harold P. Thomson, one of the judges of the Second Judicial District in this state, in presiding as trial judge in a certain criminal action in the District Court of Walsh County against one Leonard Maresch, and in pronouncing sentence and rendering judgment in said criminal action.

The said Leonard Maresch was charged with the commission of the crime of murder in the first degree and was held to answer in the District Court of Walsh County. The Honorable C.W. Buttz, one of the judges of the Second Judicial District, was the presiding judge at the term of the District Court at which the action was about to be tried. On March 26, 1945, the said Leonard Maresch filed what is commonly known as an affidavit of prejudice against said Judge Buttz under the provisions of NDRC 1943, Section 29-1519. Thereafter, such proceedings were had pursuant to law that on March 27, 1945, an order was entered by the Supreme Court of North Dakota appointing and designating the Honorable P.G. Swenson, one of the judges of the First Judicial District, as presiding judge in said criminal action. The action came on for trial in April 1945 before a jury and resulted in a verdict finding the defendant guilty of murder in the first degree. The defendant appealed from the judgment of conviction and the Supreme Court reversed the judgment of conviction for errors occurring at the trial and remanded the case for a new trial. State v. Maresch, 75 N.D. 229, 27 N.W.2d 1. The action appeared upon the calendar of a term of the District Court of Walsh County called to convene July 7, 1947. The Honorable C.W. Buttz, the judge against whom the defendant had filed an affidavit of prejudice in the first instance, was the presiding judge at such term. Some question having arisen between counsel for the respective parties as to what judge was authorized to preside upon the retrial of the said criminal action, the Attorney General and the State's Attorney of Walsh County duly presented an application to the Supreme Court asking that such Court, (under its power of general superintending control over inferior courts, N. Dak. Const., Sec. 86), determine whether the order formerly entered by said Supreme Court designating Honorable P.G. Swenson as trial judge in said criminal action remained in force and if not in force, that the Supreme Court designate a judge to act as trial judge in said action. Such application came on for hearing pursuant to notice. Upon the hearing the Attorney General and the State's Attorney of Walsh County appeared for the state, and the defendant, Leonard Maresch, appeared by his counsel and filed a written return wherein he objected to the said Honorable P.G. Swenson continuing to act as presiding judge upon the trial of said action and asked that the Supreme Court designate some district judge other than the said Judge Swenson to act as trial judge. Before such application was determined, indeed before it was fully submitted, Judge Swenson submitted to and filed with the Supreme Court a written statement to the effect that because of illness it would be impossible for him to preside upon the trial of the said criminal action at the term appointed to convene on July 7, 1947, and, therefore, he asked that he be relieved of the duty of acting as judge in such case. It then appeared to the satisfaction of the Supreme Court that in order that said criminal action might be tried expeditiously, it would be necessary in any event that some judge other than the said Judge Swenson be designated as trial judge in said criminal action. Accordingly, on June 20, 1947, an order was made relieving said Hon. P.G. Swenson from all duties as presiding judge in said criminal action and further ordering that the Hon. W.H. Hutchinson, one of the judges of the Third Judicial District, be designated and appointed as judge to preside upon the trial of said criminal action in the District Court of Walsh County, North Dakota, and to do and perform all acts authorized by our laws to be performed by the presiding judge upon the trial and determination of said action.

Judge Hutchinson entered upon the discharge of his duties as presiding judge in said criminal action. In the afternoon of July 8, 1947, he presided at a session of the District Court of Walsh County held in the Court Rooms of said Court in the Court House in Walsh County. At such session he called the case of the State of North Dakota against Leonard Maresch. The Hon. Nels G. Johnson, Attorney General of the State of North Dakota, and Wallace E. Warner, State's Attorney of Walsh County, were present in court and appeared as attorneys for the State of North Dakota and the defendant, Leonard Maresch, was present in person and represented by his attorney, Wm. T. DePuy. Defendant's attorney DePuy made certain preliminary motions, among others, one that provision be made for the appointment by the Court of additional counsel for the defendant, Leonard Maresch, the compensation of such counsel to be paid by the county; and another, that certain witnesses for the defendant be subpoenaed from without the state and that the expense incident to the appearance of such witnesses be paid by the county. Judge Hutchinson ruled upon and decided such motions. Thereupon during such session of the court, consideration was given to the time when the said criminal case should be brought on for trial. Counsel for both parties participated in such discussion and were heard with respect thereto, and thereupon the said Judge Hutchinson, as presiding judge, ordered that the trial of said cause be continued until July 29, 1947. At the hour appointed for reconvening court on July 29, 1947, the court was opened pursuant to adjournment with the Hon. W.H. Hutchinson, judge, presiding. The state appeared by Wallace E. Warner, State's Attorney for Walsh County, and the defendant appeared in person and by his attorney, Wm. T. DePuy. At that time it was agreed by the parties and their attorneys and by the court that the case be set for trial on November 4, 1947, at 10 o'clock in the forenoon of that day; and the said W.H. Hutchinson as presiding judge thereupon directed the entry of an order that the court be adjourned to reconvene on November 4, 1947, at 10 o'clock A.M. and that said criminal case come on for trial at that time. On October 4, 1947, the said Judge Hutchinson made an order summoning a petit jury and that 100 qualified persons be summoned as jurors to report at the Court Rooms of said court in the Court House in Walsh County on November 4, 1947, at 10 o'clock A.M. of that day.

On October 31, 1947, certain proceedings were had in the District Court of Walsh County, in the case of the State of North Dakota v. Leonard Maresch before the Hon. Harold P. Thomson, one of the judges of the Second Judicial District, presiding. At that time Leonard Maresch the defendant in said criminal action appeared in court with his attorney, Wm. T. DePuy, and the Hon. Wallace E. Warner, the State's Attorney of Walsh County, appeared as attorney for the prosecution. Defendant's counsel then said: "If it please the Court, the defendant has been informed against with the crime of Murder in the First Degree, a plea of not guilty has been entered. As the Court knows there has been a trial, a conviction and a reversal with a new trial set to commence next Tuesday. The defendant is here and here and now he offers to enter a plea of guilty to the offense of Manslaughter in the Second Degree, which I apprehend is included in the Information on file in and with this Court. I presume in order to accept a plea of that sort to that offense it would be necessary for the State to recommend to the Court that such plea be accepted." Following this the State's Attorney, Warner, said: "Let me say at the outset for the sake of the record that the Attorney General of the State of North Dakota, Honorable Nels G. Johnson, is opposed personally to the allowance of this plea and that by my taking this plea I am taking it upon my own responsibility and against the recommendations and the opinion of the Attorney General of the State of North Dakota. However, your Honor, I as State's Attorney feel accepting it on behalf of the State in the case that it is advisable, that it is expedient to take this plea . . .". (The State's Attorney then states certain reasons for his belief that the plea should be accepted.) Judge Thomson thereupon stated: "Mr. Maresch, will you please stand up. Is it your desire that you be permitted to enter a plea of guilty to the charge of Manslaughter in the Second Degree in this case now pending against you here in Walsh County?" The defendant answered the question in the affirmative. Thereafter, the said Leonard Maresch, as defendant in said criminal action, entered a plea of guilty to the crime of Manslaughter in the Second Degree. Judge Thomson thereupon pronounced sentence, and judgment of conviction was rendered and entered, that the said Leonard Maresch be committed to the State's Penitentiary for a term of five years.

It is shown that the State's Attorney of Walsh County requested the Attorney General to assist in the prosecution of the criminal action against Maresch, and that in compliance with such request the Attorney General in performance of his official duties (NDRC 1943, Sec. 54-1201, 1, 5), took an active part in the prosecution of the action from the very beginning. He took part in the trial of the action in the District Court. He participated in the proceedings had after such trial and on the appeal to the Supreme Court he filed a brief and argued the case orally before the court. He continued to take an active part in the proceedings had following the remand of the case and he had arranged to be present at and participate in the retrial of the case. The Attorney General was not present and did not participate in the proceedings had before Judge Thomson on October 31, 1947. After being informed of such proceedings he applied to this Court for a supervisory writ to review the action of the said Judge Thomson in presiding as judge of the District Court at the proceedings then had in the case of State of North Dakota against Leonard Maresch and in pronouncing sentence and rendering judgment in said case. The Attorney General contends that such action by Judge Thomson was unauthorized and is null and void; that the only judge authorized and qualified to perform any judicial act in said case was the judge appointed and designated by the order of the Supreme Court, namely the Honorable W.H. Hutchinson and that he and he alone had authority to act as judge in said action.

Logically, the first question which presents itself for consideration and determination is, what is the scope and effect of an appointment and designation by the Supreme Court of a substitute judge in an action in which an affidavit of prejudice has been filed against the presiding judge? The answer to the question involves a construction of the laws providing for such appointment and designation.

The laws of this state have always provided that one accused of crime may disqualify a judge of the District Court from acting in a criminal case by such accused filing an affidavit that he can not have an impartial trial by reason of the bias or prejudice of the presiding judge in the District Court where the action is pending and is about to be tried. Indeed such provision was made in the first code enacted by the Legislative Assembly of the Territory of Dakota. See Section 285, Code of Criminal Procedure, Revised Codes Dakota, 1877. This section remained in force as enacted and became a part of the laws of the State of North Dakota upon the establishment of the state government. North Dakota Constitution, Schedule, Section 2; Compiled Laws of Dakota 1887, Section 7312. C.L. 1913, Section 10766. Under such statutory provisions the right to a change of judges was absolute upon the timely filing of the statutory affidavit. State v. Kent,4 N.D. 577, 593, 62 N.W. 631, 27 LRA 686; State v. Boyd, 26 N.D. 224,144 N.W. 232. But under such provisions the judge against whom an affidavit of prejudice was filed was authorized to call any other judge of a District Court to preside at the trial of the action. This continued to be the law of this state until 1921. In that year the legislature changed the law and specifically provided that upon the filing of an affidavit of prejudice by the defendant in a criminal action, the district judge against whom such affidavit is filed "shall proceed no further in the action and shall thereupon be disqualified to do any further act in said cause," and that the Supreme Court shall "designate a district judge to act in the place and stead of the judge disqualified." Laws 1921, Chapter 129, Section 1, 4. The provisions of the law then enacted have been continued in force without material change and as embodied in the North Dakota Revised Codes of 1943, read as follows:

"29-1513. Prejudice or Bias of Judge; Affidavit; Filing. When either party to a criminal action pending in any of the district courts of this state shall file an affidavit stating that he has reason to believe and does believe that he cannot have a fair and impartial trial or hearing before the judge presiding at the term of court at which such action is to be tried, by reason of the bias and prejudice of such judge, the judge shall proceed no further in the action and thereupon shall be disqualified to do any further act in the cause. Such affidavit may be made by the defendant or by his attorney on his behalf, and it may be made on behalf of the state by the attorney for the state. Such affidavit must be filed at least five days before the opening of the term if the information has been filed. If the information is filed in term time, the affidavit may be filed at any time before trial.

"29-1514. Affidavit of Prejudice to be Filed. An affidavit of prejudice with two copies thereof shall be filed with the clerk of the court in which the action is pending. Upon the filing of such affidavit, the clerk shall give notice immediately to the judge who is disqualified by delivering to him a copy of such affidavit. Another copy thereof shall be forwarded promptly to the clerk of the supreme court.

"29-1515. The Supreme Court to Designate Trial Judge. Upon receipt of an affidavit of prejudice from the clerk of the district court of any county in this state, the supreme court shall designate a district judge to act in the place and stead of the judge disqualified.

"29-1516. Judge Designated to Conduct Trial Forthwith; Noticeto Parties. Any judge of the district court designated by the supreme court to act in a cause to which he has been assigned, as soon as possible after receiving such notice from the supreme court and during the same term unless agreement to the contrary is made by the parties, shall proceed with the trial of said cause, first giving to the parties or their attorneys reasonable notice of the date of trial.

"29-1517. Expenses of Judge Designated. The actual expenses of a judge designated to try a cause in which an affidavit of prejudice has been filed, upon furnishing a voucher therefor to the state auditor, shall be approved for payment and paid by the state treasurer out of the general fund.

"29-1518. Jurors Not to be Excused by Disqualified Judge. After an affidavit of prejudice has been filed with the clerk of the district court, no juror shall be excused except by the judge designated for good cause shown."

It will be noted that the legislative enactment of 1921 made a complete change in the method of selecting and designating a substitute judge to act in the place of a district judge against whom an affidavit of prejudice has been filed. Under the law as it existed prior to such enactment the jurisdiction of the proceeding for such selection and designation was vested in the district court and the judge against whom the affidavit of prejudice had been filed was authorized and required to make such designation. This method was wholly abrogated by the 1921 legislative enactment. By this enactment the legislature not only deprived the judge against whom an affidavit of prejudice had been filed of authority to make such selection and designation but it withdrew from the district court and the judges thereof the right to make such selection and designation and imposed the duty upon the supreme court under its constitutional power of "general superintending control over all inferior courts", (ND Constitution, Section 86), to select and designate a substitute judge to act in the place and stead of a judge who had become disqualified by reason of the affidavit of prejudice. State v. First State Bank, 52 N.D. 231, 256-258, 202 N.W. 391, 401-402; Lowe v. District Court, 48 N.D. 1, at page 8, 181 N.W. 92, at page 95, second column.

Under the statute the disqualification of the judge is accomplished when an affidavit of prejudice is timely filed. State v. Kent, supra; State ex rel. Mattoon School District v. Circuit Court, 61 S Dak 154, 158-159, 246 N.W. 638; State ex rel. Hannah v. Armijo, 38 N Mexico 73, 79, 28 P.2d 511, 514; State ex rel. Weltmer v. Taylor, 42 N Mexico 405, 407, 79 P.2d 937; Berger v. U.S. 255 U.S. 22, 35-36, 65 L ed 481, 486, 487, 41 S. Ct. 230; State v. Peterson, 49 N.D. 117, 190 N.W. 309. When the affidavit has been filed the judge against whom it is directed has no authority to designate another judge to act in his place and stead and an order by such judge designating the other judge in the same judicial district, — the judge who normally would have presided at the trial if the disqualified judge had not presided, — is erroneous and invalid. State v. Peterson, supra.

The object sought to be accomplished by the designation of a substitute judge is to provide a judge with all the powers and charged with all the duties and responsibilities of the regular judge, and the statute evidences an intention that the substitute judge shall be endowed with such powers and charged with such duties and responsibilities. There is no provision in the statute indicating that the appointment of a substitute judge and the powers conferred upon him shall be restricted to certain acts. The statute provides "the Supreme Court shall designate a district judge to act in the place and stead of the judge disqualified." Section 29-1515, supra. There is no provision in the statute indicating that the appointment is limited in time other than the final disposition of the case in the court in which the judge has been designated to act. The statute specifically recognizes that if the case is not tried during the term at which it appeared for trial at the time the affidavit was filed the judge designated continues as judge and may try it at a subsequent term. NDRC 1943, Section 29-1516. The appointment and designation is not a general one and does not extend to matters or causes other than the one in which the designation is made. See 48 CJS, p 1127.

The authority of the judge who has been designated to act in a particular case in the place and stead of a disqualified judge is limited to the particular case for which he has been designated; it does not extend to other cases pending in the court in which the particular case is pending. 48 CJS, pp 1123, 1127; 17 A E Ency L, 2d ed, p 749. But in the particular case for which the substitute judge has been designated he becomes the judge of the court for all purposes until the case has been finally disposed of in that court or his designation has been rescinded. 48 CJS supra; 17 A E Ency L, 2d ed, p 749; State ex rel. Kister v. De Voss, 212 Ind. 541, 10 N.E.2d 287; State ex rel. Hodshire v. Bingham, 218 Ind. 490, 33 N.E.2d 771, 134 A.L.R. 1126; State v. Towndrow, 25 N Mexico 203, 180 P. 282; Collier v. State, 52 Okla. Crim. 346, 5 P.2d 405; Kane v. Ferguson,195 Okla. 292, 157 P.2d 194; Dotson v. Burchett et al., 301 Ky. 28,190 S.W.2d 697, 162 A.L.R. 636; see also Neely v. State, 194 Ind. 667,142 N.E. 852.

When the case has been finally disposed of in the court in which the substitute judge has been designated to act, either by final decision or by transfer of the case to another court, the duties of the substitute judge have been discharged and his authority under the order of designation are terminated. State v. Garrison, 68 N.D. 71, 276 N.W. 693. But while the case remains pending in the court in which the substitute judge has been designated to act, the substitute judge alone is authorized to act in the case and the authority of the regular judge or judges is suspended as far as they relate to the case for which the substitute judge has been designated. State v. Towndrow, supra; Collier v. State, supra; see also State ex rel. Kister v. De Voss, supra; State v. Donnelly, 68 N.D. 76, 276 N.W. 695; Dotson v. Burchett, supra; Kane v. Ferguson, supra.

It is contended that the designation by the Supreme Court confers authority upon the judge designated only to act as presiding judge upon the trial of the particular action in which the designation is made, and that such designation vests exclusive authority in the substitute judge only in matters incident to or growing out of the trial, and it is argued that the designation does not vest in such substitute judge exclusive authority to act as judge where a plea of guilty is interposed.

It is said that when a plea of guilty is interposed there is no trial of any issues and the designation does not vest the substitute judge with exclusive authority to act, and that any regular judge of the court may accept the plea and pronounce sentence and judgment.

In our opinion this contention is not well founded and does not accord with the legislative intention and purpose as evidenced by the statute. We think the statute clearly evidences an intention that the judge designated by the Supreme Court shall have all the powers and be charged with all the duties and responsibilities of judge in the particular case. The statute does not evidence any intention to restrict or to limit the powers of such judge to certain features of the case. The judge is given full and complete authority as judge in the particular case in which he is designated to act. In every pending criminal action there is a possibility there may be a plea of guilty either to the offense charged or to some included offense. The plea of guilty does not dispense with judicial action. On the contrary, such plea invokes and requires action by the judge.

When a judge is selected and designated to act as judge in a criminal action in the place and stead of a judge who is disqualified, the designation is made for all purposes and the authority vested extends to the disposition of all questions that may arise requiring action by the judge. The withdrawal of a plea of guilty and the entry of a plea of guilty are among the possible or even probable incidents that may occur. When a judge is designated by the order of the Supreme Court to act as judge in a criminal action in which an affidavit of prejudice has been filed, the case in which such judge is designated is in effect set aside from other cases pending in that court and the case is specifically assigned to the judge designated for disposition and he alone is properly authorized to act as judge or to perform any judicial act in the case while the order is in effect and any judicial action by a judge other than the one so designated is erroneous. State v. Towndrow, supra; Collier v. State, supra; see also State ex rel. Kister v. De Voss, supra; State v. Donnelly, supra; Dotson v. Burchett, supra; Kane v. Ferguson, supra.

State v. Towndrow, supra, involved the question of the scope and effect of an order designating a judge of a district court to act as judge in a particular case in the place and stead of the regular presiding judge in another judicial district. The Constitution of New Mexico, (Article 6, Section 15), provides:

"Whenever the public business may require the Chief Justice of the Supreme Court shall designate any district judge of the state to hold court in any district, and two or more district judges may sit in any district or county separately at the same time."

In construing and applying this provision the Supreme Court of New Mexico held:

"Under this provision of the Constitution, where the Chief Justice of this court has designated a district judge other than the regular presiding judge of any given district to preside over the trial of any given cause, his jurisdiction of said cause is exclusive, and continues until the cause is disposed of or until his designation is rescinded." (Syllabus, 25 N Mexico 203, 180 Pac 282).

In general the holding of the Supreme Court of New Mexico seems pertinent here. The designation in State v. Towndrow was made by the Chief Justice of the Supreme Court pursuant to the authority and duty imposed upon him by the Constitution. The order designating Judge Hutchinson in State v. Maresch was made by the Supreme Court, in the exercise of its constitutional power of superintending control over inferior courts, pursuant to the provisions of the statute requiring the Supreme Court in the proper case to make such order.

We are agreed that Judge Hutchinson was vested with the exclusive authority to act as judge and to discharge any and all judicial acts in the case and that Judge Thomson erred in acting in the case and in pronouncing sentence and judgment.

The question, therefore, presents itself whether the acts of Judge Thomson were merely erroneous and voidable or were wholly void.

At common law judicial acts of a disqualified judge are generally held to be merely erroneous and voidable, but not void. 48 CJS p 1109; 30 Am Jur p 802, Sec. 97; 17 A E Ency L, 2d ed, pp 742, 743. Where the disqualification of a judge is the creature of a constitutional or statutory provision the answer to the question whether the act of a disqualified judge is void or voidable depends upon the language of the applicable constitutional and statutory provisions and the nature of the disqualification thereunder. 48 CJS p 1109; 30 Am Jur p 802, Sec 97; 17 A E Ency L, 2d ed, pp 742, 743.

American Jurisprudence says:

"According to the weight of authority, at common law, the acts of a disqualified judge are not mere nullities; they are simply erroneous and liable to be avoided or reversed on proper application, but cannot be impeached collaterally, except in the case of those inferior tribunals from which no appeal or writ of error lies. This is also the general rule under statutes, in the absence of any express provision to the contrary or expressly prohibiting the judge from sitting, especially where the disqualification is regarded as a matter of personal privilege merely." 30 Am Jur p 802, Sec 97.

Corpus Juris Secundum says:

"While the judicial act of a disqualified judge is an error subject to vacation or reversal, it has generally been held that at common law such act is merely voidable but not void, and that such an error does not affect the judge's jurisdiction or render his acts subject to collateral attack. Since, however, the disqualifications of judges are mostly the creatures of statute, whether the act of a disqualified judge under the provision declaring him disqualified is void or voidable depends on the language of the statute or the nature of the disqualification thereunder; some statutes are considered merely as declaratory of the common law. If the right to object to a disqualified judge is a personal privilege of the litigant, or his disqualification may be waived, it has generally been held that his act is voidable but not void, and that it is not subject to collateral attack. . . .

"On the other hand, if the disqualification is of a nature that cannot be waived, or is considered as founded in public policy, the act of a disqualified judge is absolutely void, and this is also true where the constitution or statute creating the disqualification by mandatory provision prohibits the judge from acting. If the act is considered void it is subject to collateral attack; and it is void notwithstanding an attempt to waive the disqualification or to confer jurisdiction by consent." 48 CJS pp 1109-1110, Section 97.

This is not a case where it is claimed that the person who has acted as judge was wholly disqualified from acting as judge of the court at all, and that consequently there was no judge, and no court at all. There is no question here but that the District Court of Walsh County with Judge Thomson as presiding judge was a legal court authorized to act in all matters within the jurisdiction of the court; nor is there any question about the authority of Judge Thomson to preside and act as judge of such court except in any particular case in which he might be disqualified.

Judge Thomson was a duly elected and qualified judge of the District Court of the Second Judicial District and hence one of the regular judges of the District Court of Walsh County and he had authority to act as judge of that court in all cases except in cases in which he might be disqualified. The disqualification of Judge Thomson in the case of the State of North Dakota v. Leonard Maresch arose alone from the fact that Judge Hutchinson had been designated to act as judge in that particular case by an order of the Supreme Court entered pursuant to law. There were no other grounds of disqualification. He was not disqualified because of any interest in the action, or relationship to the parties, or because of any charge of bias or prejudice made against him by either of the parties in the action. There are no constitutional or statutory provisions expressly prohibiting Judge Thomson from acting in the case. The disqualification arose only because Judge Hutchinson had been selected and designated to act as judge in the case and as a consequence other judges were by necessary implication unauthorized to act in the case. Aside from the disqualification of Judge Thomson, the proceedings had were in all respects regular. At the time such proceedings were had the District Court of Walsh County was open and had authority to receive a plea of guilty in a criminal action and to pronounce sentence and judgment therein. State v. Pedie, 58 N.D. 27, 224 N.W. 898; State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849.

The defendant was present and represented by his attorney, and the State was represented "by its regularly authorized officer," the State's Attorney of Walsh County, (Schideler v. Indiana,129 Ind. 523, 29 N.E. 36, 28 ASR 206, 16 LRA 225), whose duty it was under the law to attend the District Court and to conduct on behalf of the state all prosecutions for public offenses. NDRC 1943, 11-1601 (1). It is true the proceedings had before Judge Thomson were also contrary to the order of this court designating Judge Hutchinson to act as judge in the case, for although, in the very nature of things, such order contained no express provision that no judge other than Hutchinson should act as judge in the case, we think that this was necessarily implied. However, error in construing the order and the law under which it was made or failure to conform to the order did not render the action of the trial court or of the judge void but rendered it merely erroneous and voidable. 4 CJ p 1243, Sec 3306; 5 CJS p 1557, Sec 1993.

While the proceedings had before Judge Thomson were erroneous, they were doubtless had in the belief that they were regular and proper. We are satisfied there was no intention to disregard or circumvent the order of this court or to do any act that was not entirely conformable to the law. We are also satisfied that in instituting the proceeding in this court to review the actions then had the Attorney General was actuated only by a compelling sense of duty. He had come to the conclusion that the proceedings had before Judge Thomson were erroneous and probably void and he further believed that the plea of guilty to second degree manslaughter should not have been accepted. In short, we are satisfied that the actions had in the District Court of Walsh County which gave rise to the controversy and to the subsequent proceedings had in this court for the review of the validity of such proceedings were in no sense and at no time actuated by other than proper motives, but were the result of honest differences of opinion on the part of men who had no purpose other than to faithfully discharge their respective official duties.

We are agreed that the order designating Judge Hutchinson to act as judge in the case of the State of North Dakota v. Leonard Maresch conferred upon him exclusive authority to act as judge in such case and that, therefore, Judge Thomson was disqualified to act as judge; but we are also agreed that his actions were not void but were merely erroneous and voidable and that the judgment of conviction rendered by him is not subject to collateral attack (17 A E Ency L p 743; 48 CJS p 1109), and is not reviewable except upon consent of the defendant. 1 Bishop Crim Law, 9th Ed p 758, Sec 1026; State of N.J. v. Hart, 90 N.J.L. 261, 101 A. 278, LRA1917F, 985; State v. Kelsey, 49 N.D. 148, 190 N.W. 817. Leonard Maresch was, therefore, put in jeopardy by his plea of guilty and the judgment of conviction rendered upon such plea, and such judgment is a bar to any further prosecution for the offense charged in the Information that has been filed against him. N Dak Const, Sec 13; NDRC 1943, 29-0107, 29-0109; The People v. Goldstein, 32 Calif 432; 22 CJS p 385, Sec 248; 17 A E Ency L, 2d ed, p 592; Rupert v. State, 9 Okla. Crim. 226, 131 P. 713, 45 LRA (NS) 60; Belter v. State, 178 Wis. 57, 189 N.W. 270. See also, State v. Kelsey, 49 N.D. 148, 190 N.W. 817.

The fact that the proceedings had before Judge Thomson were erroneous and that the judgment rendered was voidable does not destroy its effectiveness as a bar to further prosecution. 15 Am Jur, p 51; 22 CJS, pp 378, 382, 383, 402, 403. Such judgment "will stand against everything done for its reversal without the defendant's consent." 1 Bishop Crim Law, 9th Ed, p 758, Sec 1026. See also, State v. Hart, 90 N.J.L. 261, 101 A. 278, LRA 1917F, 985; State v. Kelsey, 49 N.D. 148, 190 N.W. 817. It constitutes a bar to further prosecution regardless of the irregularity in the proceedings had at the time the judgment was rendered. 1 Bishop Crim Law, 9th Ed, p 734, Sec 992, p 758, Sec 1026; 22 CJS, pp 378, 382, 383, 402, 403; 15 Am Jur 15; The People of Calif. v. Webb, 38 Calif 467; People v. My Sam Chung, 94 Calif 304, 29 P. 642, 28 ASR 129; People v. Terrill,132 Calif 497, 64 P. 894; State v. DeFord, 120 Or. 444,250 Pac 220.

The order heretofore issued will be quashed and the proceeding for a supervisory writ dismissed. It is so ordered.

BURKE, J., and GRONNA, Dist. J., concur.

MORRIS and BURR, JJ., not participating.