[Download] "Coleman v. District Court" by Supreme Court of Montana # Book PDF Kindle ePub Free
eBook details
- Title: Coleman v. District Court
- Author : Supreme Court of Montana
- Release Date : January 30, 1947
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 59 KB
Description
1. Mandamus ? Disqualification of judge ? Calling another with dispatch. A district judge, against whom an affidavit of disqualification for implied bias has been filed, may take the time reasonably necessary to ascertain what other judge or judges may be available to preside, but he must proceed in good faith and without unreasonable delay, and from a delay of ten months it was inferred that the judge had not acted with dispatch. 2. Attorney and client ? Attorneys authority to represent client. Defendant judge could not raise contention that plaintiff had never authorized nor consented to filing by her attorney of affidavit of disqualification and never authorized institution of the mandamus proceeding, where defendant did not follow statutory procedure necessary to require an attorney to produce and prove the authority under which he appears. 3. Attorney and client ? Presumption as to attorneys authority to represent client. The appearance of a regularly admitted attorney at law is presumptive evidence of his authority to represent the person for whom he appears. 4. Removal of causes ? Removability of cause is question for Federal court. The question of the removability of a suit from a state to a federal court is a matter exclusively for cognizance by the federal court. 5. Judges ? Calling in another judge, reason not sufficient for. The district judge was not authorized to call in another judge to sit and act in the action merely because the judge had previously made an order removing the action to federal district court, where federal district court had remanded the cause to the state court. 6. Judges ? Disqualifying affidavit, how made by attorney. The statute providing that an affidavit of disqualification of a judge may be made by any party to an action personally or by his attorney or by an agent, on the ground that "he" has reason to believe that plaintiff cannot have a fair trial, requires that when the attorney makes the affidavit he should make it on his own belief that his client cannot have a fair trial and not on behalf of his client. 7. Judges ? No inquiry into truth of disqualifying affidavit may be had. On an affidavit of disqualification of a judge for bias, there can be no inquiry as to the truth or falsity of the assertion of bias or prejudice, and the mere filing of the affidavit asserting such bias is all that is required. 8. Evidence ? Judicial notice of court rules. The Supreme Court could not take judicial notice of the existence of rules of various courts. 9. Judges ? Unreasonable delay in calling in another judge. A judge against whom an affidavit of disqualification has been filed should not be permitted to delay for ten months the calling of another judge to sit in the case, simply because he has not sooner - Page 373 been able to find a district judge who will accept such jurisdiction in conformity with the rules of his court. 10. Mandamus ? Failure to call another judge ? Mandamus held proper. Plaintiff, whose affidavit for disqualification of a district judge on ground of bias had not been complied with by the judge, did not have a plain, speedy, and adequate remedy by resort to the statute relating to change of place of trial on disqualification of the resident judge, and therefore mandamus was the proper remedy for plaintiff to compel the disqualified judge to call in another judge. 11. Statutes ? Statute of disqualification and of change of place of trial construed together. The statute relating to the affidavit of disqualification for bias of the judge, and the statute relating to change of place of trial on disqualification of the resident judge, must be construed together. 12. Judges ? Disqualified judge may not grant change of venue. Where the initial step of calling in another judge after the disqualification of the resident judge has never been taken, the resident judge is without authority to grant a motion to grant a change of venue if presented.