It may well be argued that when President Charles J. MacGowan as the principal under whom plaintiff claimed authority to bring his suit executed Exhibit 10 and took other action as shown in the return, he thereby withdrew plaintiff's apparent authority to act in any manner inconsistent with the conduct of his principal and, upon the present record, it would seem that plaintiff is no longer empowered to object in his representative capacity to the action taken by the court pursuant to Exhibits 10 and 11. In reliance upon this view it is argued by the attorneys for Judge Redding that, even assuming the affidavit to have been timely filed, the plaintiff has no standing to oust Judge Dobson by an affidavit of prejudice. But even if it be true that the *Page 627 plaintiff is no longer authorized to proceed in opposition to the position of his principal, we do not feel justified in determining the sufficiency of the affidavit of prejudice upon that ground or upon this record. The plaintiff is still a nominal party who may perhaps have some individual rights or liabilities which could be affected by the litigation. Attorneys for Judge Redding also argue that the conduct of Mursener and of his principal, MacGowan, subsequent to the filing of the affidavit of prejudice, amounts to a waiver of any rights thereunder. We prefer, however, to determine the case upon other grounds now to be considered.
O.C.L.A. § 1-501 provides that a judge of the circuit court may be disqualified by the filing of an affidavit of prejudice. § 1-502, as amended by Ch. 299, Or. L. 1943, provides the manner in which prejudice may be established. In part, it provides that "in judicial districts having a population of one hundred thousand (100,000) or more, the affidavit and motion for change of judge shall be made at the time and in the manner prescribed in section 1-503." The latter section controls procedure in Multnomah county, and is as follows:
*Page 628"In any county of the state of Oregon where there is a presiding judge who hears motions and demurrers and assigns cases to the other departments of the circuit court for trial, the affidavit and motion for change of judges to hear the motions and demurrers or to try the case may be made at any time, either before or after the assignment of the case for trial, and either before a hearing upon a motion or demurrer or the commencement of trial of the said cause; provided, further, that no party or attorney shall be permitted to make more than two applications in any action or proceeding under this act." O.C.L.A. § 1-503.
Whatever doubts may arise as to the proper construction of the statute in other respects, this much at least is clear: an affidavit of prejudice under the statute comes too late if filed after the commencement of trial. Both parties have presented the case upon the theory that if the affidavit of prejudice was presented before the commencement of trial, it would be timely and they appear to concede that if presented after the commencement of trial, it would come too late. The matter being so presented, we are content to decide it upon that issue.
The plaintiff cites Western Athletic Club v. Thompson,169 Or. 514, 129 P.2d 828, in support of the contention that the affidavit in the case at bar was filed within the time allowed by statute. In that case the trial judge tried the case on the merits after an affidavit of prejudice had been presented. On appeal it was held that the decree thus entered was void. The facts, however, are clearly distinguishable from those with which we are now concerned. In that case the plaintiff claimed to be the owner of the business and property of the Athletic Club and alleged that the defendant was plaintiff's manager and that he had violated his trust, had taken a lease in his own name and was claiming fraudulently to be the owner of the business and property of the club. The plaintiff joined the lessor of the property occupied by the club as a party defendant and sought the reformation of the lease, an accounting from the defendant, and an injunction restraining the defendant from entering the premises or interfering with the conduct of the business. The defendant claimed to be the sole owner of the club and its property. The defendant was cited to appear and show cause why an injunction should not be issued *Page 629 against him. The matter was presented upon affidavit and, thereafter, before any order was made, the plaintiff amended his complaint and prayed for the appointment of a receiver. It appears that the trial judge appointed a receiver pendente lite "in order to preserve the value thereof during the pendency of this suit," and that the order appointing the receiver was madeex parte and was based only upon the evidence received upon the hearing for a temporary injunction. Defendant was accorded no hearing on the motion for receivership before the appointment was made. Some months later, the trial judge who had appointed the receiver announced an intention to try the case the next day. The next day, "but before the trial commenced — in fact, before Judge Stapleton had left his chambers — the motion and affidavit were filed and presented" to the trial judge. This was done before the reply to the defendant's answer had been filed. The case was therefore not at issue. It was held that notwithstanding the previous appointment of a receiver, the affidavit of prejudice was timely filed.
The distinction between the Western Athletic Club case and the case at bar is manifest. The Athletic Club case had not been put at issue when the affidavit was filed. The case at bar had been put at issue by the pleadings filed as above set forth. The receiver in the Athletic Club case was appointed merely to preserve the value of the property pending the determination of the case. The receiver in the case at bar may have been appointed in the first instance, in part, for the protection of the property pending the suit, but before the affidavit of prejudice was filed, the proceedings had progressed beyond that point. By means of the agreement and stipulation of the parties (Exhibits 10 *Page 630 and 11) and the resulting interlocutory decree, substantial contested issues as disclosed by the pleadings had been determined by the court. It is true that the stipulation related largely to an election of officers of Local 72, but it was provided that the property of the local should go to the persons who should be chosen at the election conducted by the receiver so that the conflict concerning the possession and control of the property would to that extent be determined when the interlocutory decree was made and its provisions enforced.
Our latest consideration of the law relative to affidavits of prejudice appears in the case of Forte v. Page, 172 Or. 645,143 P.2d 669. That was an original mandamus proceeding brought by M.K. Forte who had filed an affidavit of prejudice for the purpose of disqualifying Judge Page in this same case. It appears that upon filing his complaint, Mursener also applied for the temporary injunction to which we have referred. The matter was presented to Judge Page before any of the defendants had been served with processes or knew of the pendency of the suit. On the same afternoon, the defendants, being advised of the pendency of the suit, engaged counsel and filed an affidavit of prejudice. The trial judge held that the affidavit was not timely filed and issued the temporary injunction (which is the same injunction later dissolved by Judge Dobson). This court quoted with approval from Ralston v. Stone, 113 Or. 506, 232 P. 631, as follows:
*Page 631"`As used in this statute the phrase "before a hearing upon a motion or demurrer" means, and can only mean, the submission to the court for decision of a motion or demurrer, and it matters not whether the motion or demurrer is submitted upon oral or written argument or submitted without argument if argument is waived. * * *'"
The ex parte presentation and submission to the trial judge of the motion for a temporary injunction was held to constitute a hearing thereon and the affidavit subsequently filed was therefore held to have come too late to affect the power of the judge to pass upon the motion. It was indicated by this court that the affidavit was, however, filed within sufficient time to prevent the trial judge from proceeding to hear the case on the merits. But we said:
"* * * Judge Page was not assigned by the presiding judge to try it, but merely to hear and pass on an application for a preliminary injunction. These being the circumstances, it is evident that the judge treated the affidavit of prejudice as having been filed for the purpose of disqualifying him to act in the only matter before him and not in some distant matter such as the trial of the case, to which he had not been assigned. Rightly, as we have held, he refused to step aside, but proceeded to pass upon the question which had been submitted to him. By so doing he did not manifest an intention to participate further in the case." Forte v. Page, supra.
There is nothing in the case of Forte v. Page inconsistent with our conclusion here. The issuance of a temporary injunction upon an ex parte application before the case had been put at issue and by a judge who had been assigned to the cause only for the purpose of passing upon that application, presents a situation clearly distinguishable from that arising in the case at bar.
"Trial" is defined by statute as the judicial examination of the issues between the parties, whether they be issues of law or of fact. O.C.L.A. § 5-105. "Stipulation between the parties as to the facts, dictated in the presence of the judge, has been held to *Page 632 constitute a trial." 64 C.J., Trial, § 3, p. 33. And seeYoungsters' Realty Corporation v. Oliver, 180 N.Y.S. 26; andAllan v. Allan, 21 Ariz. 70, 185 P. 539.
But the stipulation in the case at bar was not merely a mutual agreement as to the facts, it was more. It was an agreement as to certain provisions which the parties, including the plaintiff, desired the court to incorporate in a decree and which could become effective only with the approval of the court. That approval was not a mere formality. It authorized the receiver to proceed in accordance with the stipulation. The trial judge entered upon the judicial examination of issues of fact as well as of law and exercised his judicial discretion in approving the stipulated provisions and in incorporating the additional provisions which appear in the interlocutory decree. The court found that it was "for the best interest of all of the parties concerned herein that the same should be approved." By signing the stipulation of March 6, the plaintiff certainly authorized the presentation thereof to the trial judge to the end that the interlocutory decree should be entered.
In the Western Athletic Club case, this court, speaking of the words, "the commencement of trial of said cause," said, "Those words, as they are commonly understood, mean the trial of the merits of the issues presented by the pleadings." In respect to the time at which trial on the merits commences, a receivership differs materially from a jury trial or an ordinary suit in equity. Once the receiver has been appointed, contested issues of various kinds may arise continuously over long periods of time. Questions of law, of fact, and of simple business management arise which may vitally affect the ultimate rights of the various litigants. *Page 633 In conserving, operating, or liquidating a business, if mistakes and delays are to be avoided, it is of vital importance that a receiver be directed by a judge familiar with the history of the case.
In a recent case we adverted to the rule that a party should not be "allowed to speculate upon what rulings the court will make on propositions that are involved in the case and, if the rulings do not happen to be in his favor, to then for the first time raise the jurisdictional question." State CapitolCommission v. McMahan, 160 Or. 83, 83 P.2d 482; and State exrel. Johnson v. Circuit Court, 114 Or. 6, 233 P. 563,234 P. 262. That doctrine is peculiarly applicable to cases involving receivership.
All of the events to which we have referred transpired before the filing of the affidavit of prejudice. Upon the presentation and judicial consideration of the stipulation, if not before, we hold that the trial judge had entered upon the trial of the merits. The affidavit was filed "after the commencement of trial of said cause." O.C.L.A. § 1-503. It came too late. The plaintiff's demurrer to the return of Judge Redding is overruled. *Page 634