Rehearing denied March 24, 1925. ON PETITION FOR REHEARING. (234 P. 262.) For the petition, Mr. R.B. Parsons and Mr. John K. Kollock. Contra, Mr. H.H. De Armond, Mr. Jay H. Upton and Mr. FrankS. Senn. Herein is considered the plaintiff's petition for rehearing. *Page 12
The alternative writ of mandamus issued out of this court at the suit of the plaintiff recites that the defendant is a judge of the Circuit Court with the statutory powers of such an official and that an action was instituted in the Circuit Court over which he presided, by the relator as plaintiff against three other parties as defendants. It is further alleged in the writ as follows:
"And it further appearing that heretofore, and after the filing of said action, and before the commencement of the second trial thereof, that the relator filed his duly verified affidavit of prejudice against you as the presiding Judge of said Court, and that based upon said affidavit the relator, by and through his attorney, filed a timely motion for a change of Judges to hear and try said case and cause.
"And it further appearing that you have failed and refused to sign an order to call in an outside Judge or to apply to the Chief Justice of the Supreme Court of the State of Oregon to designate another Judge to sit, * * and that you still so refuse. * *
"Now, Therefore, We command you that, upon receipt of this Writ, you immediately and forthwith enter an Order designating an outside Judge, * * or show cause, if any there be, * * why you have not done so," etc.
The former decision dismissing the writ was made upon the theory as supported by the precedents therein cited, that the application for change of judges should be made prior to any decision rendered by the obnoxious judge on any question of law or fact raised in the case. The writ fails to state facts sufficient to constitute a cause of action because it does not appear therefrom that the plaintiff made the application in time, or in other words before the judge had decided any issue in the case. The statement *Page 13 of the time of putting in the affidavit of prejudice, "after the filing of said action, and before the commencement of the second trial thereof" leaves it utterly uncertain as to when the affidavit was in fact filed. If filed after the first trial of the action it was manifestly too late.
Now, however, in his petition for rehearing, the plaintiff relies upon the return of the defendant wherein the latter says in substance that on March 17, 1923, the plaintiff filed his affidavit of prejudice and motion for change of judges, and that thereafter on April 4, 1923, the defendant entered an order denying the motion. The answer, however, does not state whether the first affidavit of prejudice and motion for change of judges were filed prior to any decision of law or fact made by the judge in the case. On that point, the answer is subject to the same objection as that urged against the writ. The averments of the writ are not aided by the return.
Granting however that an affidavit was filed and motion made for change of venue before the judge had performed any duty respecting the case yet, the matter was ripe for mandamus, if at all, when he for the first time refused to call in another judge. The plaintiff could have sued out a writ then as well as at any later date. However, he took no steps in that direction until after the trial and judgment in favor of the plaintiff which was set aside and a new trial granted by order of the defendant sitting as such judge. At that juncture a new situation arose giving to the plaintiff a plain, speedy and adequate remedy at law in the shape of an appeal to the Supreme Court.
The plaintiff urges in his petition for rehearing that: *Page 14
"The defendant herein having been divested of all jurisdiction, * * by the filing of the affidavit of March 17, 1923, with the exception of having the power to call in an outside judge, * * each and every act and order attempted or made by this defendant was wholly null and void. There was no legal trial, no legal verdict, no legal judgment rendered which could be enforced by or against either of the party litigants; no judicial determination of the issues therein involved for the reason that no legally and lawfully qualified Judge, having statutory jurisdiction over the parties, sat as the Court."
Conceding all this for the sake of argument, but not otherwise, we recall that an order setting aside a judgment and granting a new trial is an appealable order: Or. L., Section 548. We also read in Section 558, Or. L., that
"Upon an appeal, the appellate court may review any intermediate order involving the merits, or necessarily affecting the judgment or decree appealed from. * *"
We are also taught in Smith v. Ellendale Mill Co., 4 Or. 70, that an appeal may be taken from a void judgment. But, whether void or voidable only, the order granting a new trial was subject to an appeal by means of which all interlocutory orders of any consequence could have been reviewed.
Clearly, therefore, all the questions urged by the plaintiff here, so far as they rest upon the first affidavit and motion, could have been worked out upon the appeal in the ordinary course of law. In such a situation the case is governed by the last clause of Section 613, Or. L., on the subject of mandamus, which says that:
"The writ shall not be issued in any case where there is a plain, speedy, and adequate remedy in the ordinary course of the law." *Page 15
Manifestly the writ could not have been granted had the plaintiff applied for it immediately after the order had been made setting aside the judgment. He would have been met at the threshold by the principle that everything he sought to accomplish by the writ could be settled upon appeal. Under these principles he can find no support in the present contention by relying upon the first affidavit and motion. If he had chosen to enforce his right by mandamus based upon the first affidavit and motion he should have proceeded promptly and not slept upon his rights. Having in a sense waived his rights to mandamus by going on to trial, he is bound by the result of that experiment, and, so to speak, has himself constructed a Frankenstein monster through the operation of which his cause perishes. The petition for rehearing is denied.
REHEARING DENIED.