The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-07-14
IMITATION SUSTAINED.
The Supreme Court Aiirms the Orr
der Refusing a Change Of
Venue.
It Is Held There Has Been No
Abuse Of judicial Dis
erection.
So Decided Upon the Evidence and Under
the Practice of the Territory
and State.

The supreme court decides thole has been
no abuse of judicial authority by Judge
Mediation in refusing to grant q change OF
venue in the Davis case. The opinion is
by Chief Justice Blake, Associate Justices
HARDWOOD and Dewitt concuriing. After a
lengthy review of the authorities tho court
SAYS: ''From this review tho deduction is
clear that there il no statute which author
ICES the change of venue of the place of
trial of this proceeding by reason of the
bias and prejudice of the judge of the court
below. This is the rock III which our iudg-
ment stands. We have seen that the legis-
lative assembly has spoken in emphatic
terms of the rights of suitors in justices
courts, and defendants in certain criminal
proceedings, to Irocure a change of venue
on account of the bias or prejudice of
the judge, but it has been
silent for decades Upon this
cause with regard to parties in the district
and probate courts. The court below did
not have the power to grant the motion for
this ground, and it is needless to look at the
evidence thereon. We r~eiterate our ortiz
cism concerning the reasons which have
been given by some courts which have
reached the same results. We disapprove
every suggestion and claim that a judge,
who is swayed by personal bias or preju-
dice, is powerless to injure his foes, or rem
der aid to his friends, because his errors
can be corrected upon appeal to Il superior
tribunal. There are prescriptions in favor
of his rulings which cnnnot be ignored, and
he can make orders. which cannot be dis
turbed unless there has been a gross abuse
of his discretion. 1t is admitted
that the place of the trial of
this proceeding can be changed under
section 81 of the code of civil procedure, If
the people of the county of Silver Bow are
biased and preiudiced against the appel
lants 80 that there is reason to believe that
an impartial trial cannot be had therein.
There are no legal questions for our de-
termination. An order refusing the appli-
cation for Il change of venue will not be SET
aside in the absence of an abuse of judicial
discretion.
"This application is accompanied by the
afidavits of George O. freeman and Henry
A. Root. They alao embrace nine clippings
from two newspapers. which were published
in Butte. Freeman deposes that he is Il
resident of Helena and went to Butte in
March. 1891, for the purpose of interviewing
the residents and property owners of the
ouk JAW AlAl IN SoRSSO
ing the contest of the will; that he inter-
viewed in the nighborhood of fifty promi-
nent men of Butte and asked them what
they thought the chances were for a fair
and impartial trial; that with two excep-
tions, each of these persons advised him
that there was a strong sentiment in the
county, and particularly in Butte, in favor
of John A. Davis and Andrew J. Davis, Jr.,
his son, and against Root and Mrs. Cum
mings; that these persons said that John
A novip WIN nm old raaiIant nf Rutto and
the favored brother of the deceased; that
the deceased made most of his money in
Butte and Silver Bow county, and that the
people of Butte would get the benefit of it
in preference to some outside place; that
Andrew j. Davis, Jr., was entitled to have
the First National bank Of Butte; that, il
John A. Davis was successful in the con-
lest, he would respect the wishes of the
people of Butte, and keep the money there,
and that Butte would get the benefit of it;
cessful in the contest, the money of the
estate and the proceeds of the property
would be turned from Butte, and that Butte
would be the loser.
THAT atnant at each interview had
severally requested these persons to make
an affidavit setting forth in substance tho
above facts and opinions but that in each
and every instance. with but two exceptions
said persons refused so to do, giving az
their reasons for such refusal that they did
" ooolAc W Sco hiIASu up AL Balm uudGUcI3
unless they were compelled to; that they
would not do SO willingly"
Referring to Henry A. Roots affidavit.
which says that the newspapers of Butte
have been trying to mould the minds of the
community generally in favor of John A.
residents, the court says: "Ihe clippings
referred to were published in the Int
Mountain and Butte Mining Journal and
are confined chiefly to comments upon the
raAs~ - H. .-.-L tl--. -. -
ing John A. Davis to be the
general administrator The articles, how
over, viewed as n whole express i'll positive
aa& forcible terms the same facts and
opinions which are stated in the at1idavits
of Root and Freeman. The affidavits of
the respondent are made by residents of
Butte and deny that any bias or prejudice
relative to the contest of the will exists in
Butte or Silver Bow county. John A. Davis
deposes that the articles were published in
the newspapers without his knowledge or
wishes, and the bank 'transacts only u por-
ton of the banking business of said county;
and that only Il portion of the business men
of Butte and the county are customers of,
or have any business with the bank; there
being four or five Other banks doing bust
an interview with Julien and then
narrates q conversation which diff
fers materially from the report
That Julien ID the only person who is desig-
mated III the affidavit of Fl eaman to corrob-
crate his testimony, and that no excuse is
offered for the failure to attempt to secure
the presence in court of a number of citi-
zens OF Butte. Ii would have been the
proper mode in this proceeding, when about
fifty persons were found, who refused to
furnish their affidavits, and one party was
apparently testiFying upon both sides, to
have invoked the process of the court and
compelled all of them to attend the hearing
and give their evidence. There might have
been added to this list of witnesses the
names of the editors and reporters of the
newspapers who could be questioned as to
their sources of information, and tho citi-
Zens who were interviewed April 30, 1890, ac-
cording to the Butte Mining Journal. But no
effort of this nature has been made. John A.
Davis is shown to nave had no relation to
the articles in the newspapers. and this APP
plication rests upon the afidavits of Root
and Freeman. who are non-residents of
Silver Bow county. Upon the entire evil
dence and under the practice which has pre-
vailed in the courts of the territory and
state We must hold that there has been no
abuse of judicial discretion in refusing to
grant the motion. The order of the court
below is affirmed"
Other Proceedings.
Sfata yo laorro n Vbnp,D.,p JuJr,a,k