Gamble v. First Judicial District Court

The facts sufficiently appear in the opinion. 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, Hon. M. A. Murphy, was attorney for one of the parties to the action, and is 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, *Page 243 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 by the repealed 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 exparte 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 *Page 244 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. He has but one thing to do, and it is his duty to do that thing at ones." It is ordered that a peremptory writ of mandate issue. FITZGERALD, J.: I concur. ON REHEARING. By the Court, BELKNAP, C. J.: Rehearing denied. TALBOT, J.: I dissent.