Opinion
No. 29,383.
December 23, 1932.
New trial — judge to whom application should be made.
Construing G. S. 1923 (1 Mason, 1927) § 177, relative to the hearing of motions for a new trial before the judge who tried the case, and G. S. 1923 (2 Mason, 1927) § 9221, as amended by L. 1931, c. 200, Mason, 1931 Supp. § 9221, relative to the trial of actions and the hearing of motions upon the filing of an affidavit of prejudice, it is held that a motion for a new trial must be heard before the judge who tried the action except as provided by § 177, not applicable here; and that the trial court should have proceeded with the hearing of a motion for a new trial of an action tried before him and should not have transferred it to another judge.
Mandamus ill this court upon the petition of Nels A. Pedersen to require the Honorable G.E. Qvale, one of the judges of the district court for the twelfth judicial district, to determine a motion for a new trial in an action brought by Pearl B. Levoy against the petitioner in the district court for Chippewa county, or to show cause why he should not do so. Peremptory writ issued.
Fosnes Rolloff and J.A. Lee, for petitioner (defendant below).
Kief Kief, for Pearl B. Levoy (plaintiff below).
Alternative writ of mandamus from this court to the Honorable G.E. Qvale, one of the judges of the twelfth judicial district, to require him to determine a motion for a new trial or show cause why he should not.
At the June, 1932, term of the district court for Chippewa county, ill an action by Pearl B. Levoy against Nels A. Pedersen tried before Judge Qvale and a jury, there was a verdict for the defendant. A case was settled. On October 27, 1932, Levoy made a motion for a new trial and at the same time filed an affidavit of prejudice against Judge Qvale under G. S. 1923 (2 Mason, 1927) § 9221, as amended by L. 1931, p. 223, c. 200, Mason, 1931 Supp. § 9221. Thereupon Judge Qvale, in accordance with the terms of the statute, transferred the hearing of the motion to Judge Baker of the same district. The statute refers to the trial of an action or the hearing of a motion, order to show cause, or argument on demurrer, and does not by its terms exclude the hearing of a motion for a new trial.
By G. S. 1923 (1 Mason, 1927) § 177, it is provided:
"Whenever the judge who should hear any action, motion, or proceeding is unable to be present, any other judge of the same judicial district may act in his place, except in the trial of causes already begun before the judge so absent: Provided, that motions for a new trial shall be heard by the judge before whom the cause was tried, if he be still in office and not disabled."
There is nothing in G. S. 1923 (2 Mason, 1927) § 9221, nor in L. 1931, p. 223, c. 200, Mason, 1931 Supp. § 9221, amending it, indicating an intent that upon the filing of an affidavit of prejudice a judge who has tried a case must call in another to review his actions at the trial. Such a construction is unthinkable. The judge who tries the case to a verdict must go through subsequent proceedings, except as is otherwise provided by the statute; and, while it is disagreeable to hear a motion for a new trial with an affidavit of prejudice filed, it is still for the trial court, unless disabled, to conclude the case before him. This appears by his memorandum to have been about the view of the trial judge; but he felt disinclined to hear the motion, with the affidavit of prejudice on file, until this court ruled. The following are useful: McCord v. Knowlton, 76 Minn. 391, 79 N.W. 397; State ex rel. Smullen v. District Court, 161 Minn. 520, 201 N.W. 302; 5 Dunnell, Minn. Dig. (2 ed. Supp.) § 7085, and cases cited; 46 C. J. p. 287, § 248, and cases cited.
Let a peremptory writ issue.