State Ex Rel. Miller v. District Court of the Eleventh Judicial District Ex Rel. County of Flathead

294 P.2d 903, 130 Mont. 65, 1956 Mont. LEXIS 10

• Court: Montana Supreme Court
• Decided: March 16, 1956
• Docket: 9659
• Status: Published

Opinions

MR. JUSTICE ANGSTMAN:

Upon petition of relators this court issued an alternative writ of- prohibition returnable on February 14, 1956, at 10 o’clock a.m. Subsequently the return day was continued until February 21, 1956.

The petition of relators complained that respondent judge, the Honorable Victor H. Fall, threatens to proceed to hear and decide demurrers in a certain action pending in the respondent court, after he had been disqualified for imputed bias and prejudice, it having been found by the resident judge of the respondent court that the affidavit of disqualification directed against Judge Fall came too late.

Before the matter was heard in this court on February 21, 1956, Judge Fall filed in the district court an admission that he was disqualified in time and that he would not take part in any further proceedings in the ease pending in respondent court. A certified copy of Judge Fall’s admission was filed in this court.

Accordingly the alternative writ is hereby dissolved. The respondent court will therefore proceed to secure some other district judge to assume jurisdiction of said cause and to proceed therein to hear and dispose of whatever matters may be presented for determination.

We do not disagree with the authorities cited in the dissenting opinion touching upon the effect of a timely affidavit of disqualification directed against a district judge, as here, nor do we question the jurisdiction of this court to decide the questions raised by the application.

When the questions presented are conceded, as here, we fail to see any useful purpose in discussing them.

As to damages, including attorney’s fees, the statute allows them under certain circumstances in a mandamus proceeding, R.C.M. 1947, chapter 93-9112, and also in prohibition proceedings, chapter 93-9204. The first condition to their recovery is that they be claimed in the pleadings. State ex rel. Phillips v. Ford, 116 Mont. 190, 151 Pac. (2d) 171. If they are not claimed in the pleadings, they are waived. State ex rel. Golden Valley County v. District Court, 75 Mont. 122, 242 Pac. 421. Here the pleadings make no reference to damages or attorney’s fees and no attempt was made to amend the petition in that respect.

Eelators are entitled to their costs incurred in this proceeding.

ME. JUSTICE ANDEESON, concurs.