This is an original application for a writ of prohibition directed to defendant, as judge of the Third Judicial District, to prohibit him from proceeding further in an action entitled,First Security Bank of Idaho, National Association, acorporation, Plaintiff, v. Clarence L. Hillman et al.,Defendants, pending in that court. With the application for writ, plaintiff filed his affidavit in support thereof, within which was incorporated copy of an affidavit that had been filed in the trial court, stating "that he has reason to believe and does believe that he cannot have a fair and impartial trial and hearing before the Honorable Charles E. Winstead, . . . one of the judges in the above entitled court, by reason of the bias and prejudice of said judge." It is further alleged that the defendant judge never acquired jurisdiction to make any orders in the action; that, on motion of plaintiff bank, the affidavit of prejudice was ordered stricken from the files.
Alternative writ of prohibition issued May 1, 1943, commanding defendant, District Judge, to desist and refrain from any further proceedings in the action specified in the application; and to show cause why he should not be permanently restrained from any further proceeding in the action, except as specifically authorized by subd. 4 of sec. 1-1801, I.C.A. May 6th, return to the alternative writ was filed by defendant, praying that the petition be denied and the alternative writ be quashed. May 11th demurrer to the return was filed by defendant Anderson. The matter is now under advisement on return to the writ and demurrer to the same.
Upon the authority of Davis et al. v. Irwin et al., 65 Idaho 77,139 P.2d 474, filed July 1, 1943, the writ will be made permanent. When the affidavit of prejudice was filed, the defendant judge lost jurisdiction to take any further action in the case except "the arrangement of the calendar, the regulation of the order of business, the power of transferring the action or proceeding to some other court . . . the power of calling in another District Judge to sit and act in such action or proceeding."
The writ will accordingly be made permanent. No costs awarded. *Page 163
Holden, C.J., and Givens and Dunlap, JJ., concur.