(DOWNLOAD) "State Ex Rel. King v. District Court" by Supreme Court of Montana # Book PDF Kindle ePub Free
eBook details
- Title: State Ex Rel. King v. District Court
- Author : Supreme Court of Montana
- Release Date : January 18, 1933
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 64 KB
Description
Mandamus ? Public Officers ? County Commissioners ? Removal ? Nature of Proceeding ? Pleadings ? District Courts ? Disqualification of Judges ? Powers ? Appeal and Error ? Order Sustaining Demurrer to Complaint ? Entry of Judgment Requisite to Review on Appeal. District Courts ? Disqualification of Judges ? Judge Calling in Another to Preside Without Power to Limit Authority of Invited Judge. 1. In view of the provision of section 9098, subdivision 4, Revised Codes 1921, that a district judge who is called in to sit in place of one who is disqualified shall be vested with all the authority of the judge of the district extending the call, the disqualified judge may not in his call limit the invited judge in his authority over the cause in which he is to preside. Public Officers ? Proceedings for Removal not Quasi Criminal ? Rules of Pleading. 2. A proceeding to remove a public officer (county commissioner) for collecting illegal fees is not a quasi-criminal one, hence the rules of pleading governing in a criminal action are not applicable; on the contrary, a wide liberality in the matter of pleading in such a proceeding is allowable. Appeal and Error ? Order Sustaining Demurrer to Complaint ? Entry of Judgment Requisite to Entitle Order to Review on Appeal. 3. To entitle an order sustaining a demurrer to a complaint to review by the supreme court on appeal, judgment thereon must have been entered, otherwise the matter remains in abeyance, finality not having been reached. - Page 401 District Courts ? Disqualification of Judges ? After Disqualification Judge Without Power to Render Judgment. 4. After disqualification of a district judge in a cause pending before him subsequent to an order made by him sustaining a demurrer to several counts in the complaint, demand that he enter judgment thereon to enable plaintiff to appeal therefrom was futile, rendering judgment being a judicial function which upon disqualification he was without right to discharge. Same ? Judge of One District Substituting for Judge in Another District Without Power to Order Entry of Judgment at Chambers in Own District. 5. While a district judge called in to preside in a cause instituted to remove a county commissioner in which a demurrer to two causes of action in the complaint had been sustained by the judge of another district making the call, on taking jurisdiction could have ordered entry of judgment on the demurrer, he was without authority to do so at chambers in his own district. Supreme Court ? Mandamus ? Court not Bound by Prayer of Relator in Granting Relief. 6. On application for writ of mandate the supreme court is not bound by the prayer of relator but may order such relief as the facts may warrant; hence where a county attorney in his application for the writ asked that a district judge who, after sustaining a demurrer to a complaint seeking the removal of a county commissioner ? a matter of public concern ? disqualified himself for actual bias and prejudice, be compelled to render judgment on the demurrer to enable relator to appeal therefrom, the writ will issue commanding the disqualified judge to call in another judge for the purpose of rendering judgment, the respondent judge being without authority to do more.