State ex rel. Fraser v. District Court of the Tenth Judicial District

Per Curiam. Original Proceeding. Amended petition by R. B. Fraser et ux. for an alternative writ of prohibition to prevent the Honorable Philip C. Duncan, the duly elected, qualified and acting Judge of the Fifth Judicial District of the State of Montana, from exercising jurisdiction in that certain action 'entitled R. B. Fraser and Rosabelle Fraser, plaintiffs, v. E. C. Clark and Evan Owens, defendants, commenced February 18, 1954, in the district court of Yellowstone County, and by order of District Judge Guy C. Derry, made April 1, 1954, transferred to the district court of the Tenth Judicial District of the State of Montana, in and for the county of Fergus, whereof the Honorable Stewart McConochie is the duly elected, qualified and acting judge. On September 21, 1954, Judge McConochie was disqualified by plaintiffs by filing an affidavit imputing bias, whereupon the Honorable Victor H. Fall, one of the judges of the First Judicial District was called in by Judge McConochie. Judge Fall journeyed to Fergus County, accepted jurisdiction, heard and disallowed defendant’s petition to discharge the attachment issued in the action. Thereafter Judge Fall was disqualified by defendants by filing an affidavit imputing bias, whereupon by order of Judge McConochie the Honorable Philip C. Duncan, respondent herein, was called in and he was accepted and assumed jurisdiction and set for hearing for May 5, 1955, a motion to strike certain pleadings or parts or. portions thereof. This is the fourth separate proceeding to be filed in and determined by this court in said district court action since May 627 29,1954. See Fraser v. Clark, 128 Mont. 160, 273 Pac. (2d) 105; State ex rel. Clark v. District Court, 128 Mont. 526, 278 Pac. (2d) 1000; Fraser v. Clark, 282 Pac. (2d) 459; and the instant proceedings, State ex rel. R. B. Fraser v. District Court, No. 9529. It is ordered that the petition herein be disallowed, the writ be denied, and the proceeding be dismissed on authority of Rowan v. Gazette Printing Co., 69 Mont. 170, 220 Pac. 1104; State ex rel. Sullivan v. District Court, 122 Mont. 1, 196 Pac. (2d) 452; McLeod v. McLeod, 126 Mont. 32, 243 Pac. (2d) 321. It is so ordered.