I concur in what has been said in the majority opinion, but I also believe that the affidavit was filed within the statutory time.
M.S.A. 542.16, concerning affidavits of prejudice, has already been quoted. Because of my opinion as to its application to the facts, it will, for convenience, be requoted. It reads:
"Any party, or his attorney, * * * in any district having two or more judges, within one day after it is ascertained which judge is to preside * * * may make and file * * * an affidavit * * *." (Italics supplied.) *Page 181
If plaintiff or her attorney did not ascertain which judge was to preside until the time they appeared in court, the affidavit was filed within the required time. The dictionary definition of the word "ascertain" involves the idea of certainty. The word itself is kin to "certain." In the last letter in the series which passed between plaintiff's counsel and the court prior to the hearing, counsel wrote:
"I am in a dilemma as my client insists that another Judge hear the case. I do not want to file an affidavit of prejudice. Would you not kindly consent to having the matter before another Judge? This would save me considerable embarrassment."
The question set out in the letter was not answered by the court. Since there are three other judges in the district, plaintiff's counsel could reasonably expect, in view of the situation, that another judge would be asked to hear the motion. There being no answer from the court, in writing or otherwise, plaintiff's counsel had a right to assume that when he appeared in court the answer would be favorable and that his request would be granted. An uncertainty existed. Until the matter was called for hearing, counsel could not possibly be certain that it would be heard before Judge Wilson. In my opinion, the affidavit was filed within the statutory time.