Cox v. Dixie Power Co.

On petition of plaintiff, Amos Cox, a writ of certiorari was issued on March 12, 1928, directed to the defendant Dixie Power Company and Hon. T.H. Burton, judge of the district court of Iron county, Utah. This is an original proceeding in this court. The petitioner seeks a review and annulment of an order of the district court of Iron county, transferring for trial an action pending in that court to the district court of Washington county. The action is entitled "Amos Cox v. DixiePower Company." The allegations in the petition for a writ of certiorari are that the judge exceeded the jurisdiction of the court in ordering the transfer. In response to the writ issued by this court on petition of plaintiff, Cox, the defendant judge has caused to be certified to this court, as stated in the return:

"All of the records and files in the said proceedings on file in the office of the county clerk and ex officio clerk of the district court in and for Iron county, state of Utah, in respect to the proceedings referred to in the within writ of certiorari, and in the petition of the plaintiff filed in said proceedings, together with certified copies of the minutes of the court in respect to said proceedings, and all orders in relation thereto, the original records and files in said cause being marked ``Exhibit A,' and made a part of this return."

It appears from the petition and return of the defendant judge that on July 14, 1923, Cox instituted an action in the district court of Iron county against the Dixie Power Company to recover damages claimed to have resulted from the negligence of the power company. The case was heard before the defendant Burton, as judge of the district court of Iron county, and a jury, on or about March 20, 1925. That trial resulted in a verdict in favor of plaintiff. Defendant interposed a motion for new trial. Later this motion was by the court granted. Plaintiff, Cox, petitioner here, on or about June 22, 1926, filed with the clerk of the court his affidavit, demanding a change of judge for the second trial of the action. In the affidavit it is stated that affiant does not believe that he can have a fair and impartial trial, by reason of the bias and prejudice of the trial judge against him, and it is further stated therein that, "if some other judge is called in to try this action, who is not biased or prejudiced against said plaintiff, he can have a fair and impartial trial of said action." It is further stated in the affidavit that affiant is informed and believes that, by reason of the bias and prejudice of the judge against his attorney, John M. Foster, he cannot have a fair and impartial trial before said judge. At the time of filing this affidavit a motion on behalf of plaintiff was interposed, requesting that another judge be called in to try said cause.

So far as the record in this proceeding discloses, this motion was never ruled upon. It does appear, however, that thereafter, and on the 27th day of November, 1926, the defendant judge, without making any reference to the affidavit or motion of plaintiff, Cox, made the following order:

"Whereas, it is deemed necessary and for the best interest of all parties concerned, the above-named court, of its own motion, makes the following order: It is ordered that, under the terms and provisions of section 1676 of the Compiled Laws of Utah of 1917, the Honorable Nephi J. Bates, judge of the Sixth judicial district court of Utah, be and he is hereby respectfully invited and requested to open and conduct court in Parowan, Iron county, Utah, Monday, November 29, 1926, at 10 o'clock a.m. of said day, and hear and determine any and all matters that may be ready for trial or hearing at said time."

Accordingly, Judge Bates, of the Sixth judicial district, by virtue of the foregoing order, opened court in Iron county at Parowan, the county seat of Iron county, on November 29, 1926, and on December 10, 1926, the case of Cox v. Dixie PowerCompany came on for the second and new trial before Judge Bates and a jury. At this second trial the jury's verdict was in favor of Cox. Judgment was duly entered thereon. The Dixie Power Company again interposed a motion for a new trial. Thereafter Judge Bates made a conditional order to the effect that, unless plaintiff would consent to a reduction of the judgment in the sum of $1,000, a new trial would be granted. Plaintiff failed to consent to the reduction of the judgment, and a new trial was granted. Thereafter, on November 8, 1927, the Dixie Power Company filed a motion for a change of place of trial.

The reason stated in the motion why a change of the place of trial should be ordered was that the Dixie Power Company could not have an impartial trial in Iron county, owing to the prejudice of the people. In the motion it was also stated that the case had been twice tried in the county, had been extensively commented upon by the citizens of the county, and that it was impossible to obtain jurors who had not formed or expressed an opinion on the merits of the case. Furthermore, it is recited in the motion that the defendant company was engaged in generating electrical energy and supplying the same to its patrons in Iron county, particularly in Cedar City, Kanarra, Enoch, Summit, and to the farmers in the vicinity of Parowan, numbering approximately 875 families and business men in Iron county; that "the plaintiff objected [at the former trials] to any person using electricity from defendant sitting on the jury, for the reason that such persons stood in relation of debtor or creditor to the defendant, and the court sustained the objection, which ruling deprived the defendant from having a fair trial, and, if the case is tried again in Iron county, the defendant would be deprived of the same class of persons sitting on the jury."

An affidavit was filed opposing the transfer. Thereafter, on February 20, 1928, the court made its order transferring the cause of action to Washington county for trial. It is this order which petitioner here seeks to have reviewed and annulled, on the theory or ground that the court exceeded its jurisdiction in making and was without jurisdiction to make.

As we understand petitioner's contention, it may be reduced to two questions, or two contentions, on his part: First, that the filing of the affidavit of bias and prejudice, and requesting the court to call in another judge to try the case, deprived Judge Burton from any further jurisdiction in the case; second, that in making the order transferring the case to Washington county for trial the court exceeded its jurisdiction, for the reason that no affidavit was made or filed in support of the motion.

Comp. Laws Utah 1917, § 1785, states the grounds of disqualification of a judge. Under that section of the statute, Judge Burton was not disqualified. The grounds stated in that section are, first, that the judge is either a 1 party to or interested in an action; second, that he is related to either party by consanguinity or affinity within the third degree; third, that he has been attorney or counsel for either party in the action or proceeding. Judge Burton, therefore, was not disqualified to try the case under either of those specifications. The statement in the affidavit is that he was biased and prejudiced.

There is no statutory provision which clothes a litigant with the right, by reason of filing an affidavit of bias and prejudice, to have an order made requesting a judge 2, 3 from another district, who is not disqualified to come into the district and try the case in which the affidavit of bias and prejudice of the resident judge is filed. If the filing of such an affidavit disqualifies the resident judge from trying the case, that judge, nevertheless, under the provisions of a statute presently to be noted, has a discretion to either call into the district another judge not disqualified to try the case or transfer the case to another county for trial. Comp. Laws Utah 1917, § 6533, enumerates the grounds authorizing a change of venue. The only subdivision of that section under which it can be held that Judge Burton was disqualified to act in the Cox v.Dixie Power Company Case is subdivision 4. In that subdivision it is provided that the court may, on motion, change the place of trial "when from any cause the judge is disqualified from acting: Provided, however, that the court in its discretion may either grant the motion, * * * or may call in another district judge, not disqualified, to try the case."

The order made by Judge Burton on November 27, 1926, requesting Judge Bates to hold court in Iron county, was made pursuant to Comp. Laws Utah 1917, § 1676, as 4 recited in the order. That section reads:

"Any district judge may hold a district court in any county at the request of the judge of the district, and upon the request of the Governor, it shall be his duty to do so; and in either case the judge holding the court shall have the same power as the judge thereof."

As appears from the order itself, quoted herein, Judge Burton's order did not request Judge Bates to try the case ofCox v. Dixie Power Company especially, but requested him "to open and conduct court in Parowan, Iron county, Utah, Monday, November 29, 1926, * * * and hear and determine any and all matters that may be ready for trial or hearing at said time." The section quoted authorized Judge Burton to request Judge Bates to hold a term of court in Iron county at the time the last-named judge did hold court there.

There is nothing in the order indicating that Judge Burton was ruling on his own disqualification or qualification to hear and determine the controversy between Cox and the Dixie Power Company or any other case at issue and ready for trial at that term of court. Whether the affidavit of bias and prejudice influenced Judge Burton in making that order does not appear, and we have no way of determining that. Apparently Judge Bates heard cases at that term of court, and among others heard this particular case. He thereafter passed on a motion for a new trial. It must necessarily follow that, Judge Bates having heard the case and thereafter having passed on the motion for new trial, the case was then still in the district court of Iron county, to be heard by the regular judge thereof or to be disposed of as though it never had been tried.

As we have pointed out, the motion made for an order calling in another judge to try the case, which motion was supported by affidavit of plaintiff, was never either granted or denied, so far as appears from the record now before us. The motion being still on file and pending in the case, the court, by express provision of subdivision 4 of section 6533, supra, had discretion to either order a change of place of trial or call in another judge not disqualified to try the case. The motion of the Dixie Power Company for a change of place of trial was also pending, and subdivision 2 of section 6533, supra, authorizes a court to grant a motion for a change of venue "when there is a reason to believe that an impartial trial cannot be had" in the county. The case ofCox v. Dixie Power Company had been twice tried in Iron county. Two judges, in the exercise of their discretion, had seen fit to grant new trials. It does not affirmatively appear from the record before us on what ground Judge Burton granted the first motion for a new trial, but it does appear that Judge Bates granted a new trial for the reason that he considered the verdict of the jury excessive.

There is nothing found in the statutes that requires a motion for a change of place of trial to be supported by affidavit. True, the usual practice is to support such a motion by affidavit, and this may be said to be the general practice. However, we find no such statutory provision 5 requiring such a motion to be supported by affidavit. Iron county is sparsely populated. There had been two trials, before two different juries, composed of citizens of that county. Two different judges had found it necessary to set aside the verdicts of both those juries and grant new trials. It may therefore be reasonably inferred that the controversy between Cox and the Dixie Power Company had for these reasons become a subject of general discussion among the citizens of Iron county. In such circumstances, prospective jurors would form opinions as to the merits of the controversy, such as would disqualify them from sitting in the case.

The regularly elected judge must have had knowledge of this condition of affairs, independent of any affidavit that might be filed before him concerning the same. Having such knowledge, he would therefore have the right, when a motion was made, setting forth the grounds why a change of venue should be granted, to act in the matter without the filing of an affidavit. The court unquestionably had jurisdiction upon proper showing to grant a change of place of trial. Whether the court ordered the change because of the affidavit of bias and prejudice filed by the plaintiff, or whether the court granted defendant's motion for a change of venue, it did not exceed its jurisdiction in making the order transferring the case of Cox v. Dixie Power Company from Iron county to Washington county for trial.

Proceeding dismissed.

THURMAN, C.J., and CHERRY and HANSEN, JJ., concur (in result).