
    Case 3 — MANDAMUS
    March 23.
    Byram's Ex'rs v. Holliday, County Judge.
    APPEAL PROM NICHOLAS CIRCUIT COURT.
    1. The COUNTY JUDGE CAN NOT BE COMPELLED TO VACATE THE BENCH bv the affidavit of a litigant, but the judge may decline to act when he “ can not properly preside; ” and it is for him to determine, in the exercise of a sound judicial discretion, whether, by reason of kinship, interest or prejudice, it would be improper for him to hear the case.
    In this case a party contesting the probate of a will filed an affidavit to the effect that the county judge would not give him a fair and impartial trial. The judge thereupon declined to try the case, or to entertain a motion for a change of venue. A justice of the peace then took his seat on the bench, and an affidavit was filed as to him also. Thereupon the county judge was again asked to preside, and having refused, the propounders asked for a mandamus to compel him to hear the case, or entertain the motion for a change of venue. He responded that he declined to preside because he believed, as he now believes, “he could not properly preside in the case,” because of trouble between him and the contestant, growing out of his judicial action. Held — That he was justified in declining to entertain any motion affecting the rights of the parties.
    2. There can be no change op venue in cases for the probate of wills in the county court. "When the county judge declines to act for proper reasons, it is the duty of the county clerk to notify the justice residing nearest the court-house, and if he can not act, then the next nearest justice. The justice presiding for the time being becomes, as to the case before him, the acting county judge, and neither litigant can, by his affidavit, compel him to vacate the bench.
    WI, LINDSAY POR APPELLANTS.
    1. The county court having the sole jurisdiction in the matter of the probate of wills, there can be no change of venue from that court in such cases. (General Statutes, chapter 113, sections 26 and 28; Civil Code, section 64.)
    2. There is no statute authorizing a county judge to be sworn off the bench. (General Statutes, chapter 28, article 7, section 1; Ibid., article 2, section 1; Act of January 12r 1876, Bullitt & Iceland's Statutes, page 905.)
    3. The county judge may decline to sit in cases “in which he can not properly preside;,” but mere personal animosity existing between him and a party who objects to him sitting in the case gives him no legal right to decline to preside. (Act of March 13, 1876, Bullitt & Feland’s Statutes, page 905.)
    ROSS & OWENS on same side.
   JUDGE PRYOR

delivered the opinion op the court.

This was an application by the executors oí the will of Alfred Byram, deceased, for a mandamus compelling the appellee, James H. Holliday, as Presiding Judge of the Nicholas County Court, to hear the motion of the executors made in that court to admit to probate the last will of their testator, or to entertain the motion for a change of venue.

On the calling of the motion in the county court to probate the will, one of the heirs of the decedent contesting the probate filed an affidavit to the effect that the county judge would not give him a fair and an impartial trial of the motion, and for that reason alone, it is alleged, the county judge declined to try the case.

The county judge, in response to the petition, stated that he was not influenced in his refusal to act by the affidavit of the contestant, but before that time had some personal trouble with him on account of matters growing out of his judicial action with reference to the probate of the will. That the contestant reflected upon his conduct by certain statements made that were denounced by the appellant, and for that reason he believed, and now believes, that he could not properly preside in the case. That in the exercise of a judicial discretion he declined to pass on the rights of the parties, or to determine the question as to the contestant’s right to a change of venue.

Section 1 of the act amending article 17, chapter '28, of the G-eneral Statutes, approved January 12, 1876, provides ‘-that whenever the county judge of any county shall be absent or unable, from any ■cause, to hold the regular monthly county court, or if in attendance can not properly preside, it shall be the duty of the county clerk, upon being informed of such failure, to notify the justice of the peace residing nearest the court-house, * * * and it shall be the duty of said justice to attend and hold said court,” etc. (Acts 1876, volume 1, page 1.)

It seems from the record before us, that when the appellee (county judge) declined to preside, Summers, justice of the peace, took his seat on the bench, and an affidavit was filed as to him also, and thereupon the county judge was asked again to preside, with a view of hearing the motion for a change of venue. He declined to take any action in the premises, and hence the petition for a mandamus.

The court below, on the hearing of the demurrer to the answer of the county judge, held that he should have entertained the motion for a change of venue, but acted properly in declining to try the case on its merits. The county judge was directed to hear the motion for a change of venue, and the executors of the will have appealed because the judge was not compelled to try the case on its merits.

There is no statute under which a litigant in the county court can, by his affidavit, compel the county judge to vacate the bench, and, therefore, he should not, for that reason, have declined to hear the motion to probate the will; but the provision- of the statute under which the' judge may decline to act, when he can not properly preside, justified him, in the present instance, in declining to entertain any motion affecting the rights of the parties. His action must be within the exercise of a sound judicial dis ere lion, as it is left with the judge alone to determine, by reason of Ms relation to the parties, his interest in the cause, his bias the one way or the other, his ability to preside, so as to give the party a fair and an impartial hearing. He ought not and can not decline to preside merely for the reason of a disinclination on his part to hear the case; but the reasons influencing his action must' be such as to cause him to believe that he can not properly preside.

There is no provision of the Constitution or of the statute setting forth the causes for which a county judge may decline to act, and, therefore, the judge must determine for himself the propriety of his determining the rights of litigants. A circuit judge may be required to vacate the bench when, on an affidavit filed, the litigant believes the judge will not afford him a fair and impartial trial, and certainly when the county judge, whose personal hos tility towards one of the parties causes him to believe that he can not properly preside, declines tó act, his action is justified by the express language of the statute.

Nor should he have been compelled to hear the motion for a change of venue, for the additional reason that no change of venne is permitted in cases of the probate of wills. Such proceedings are purely local. “They must be proved before and admitted to record by the county court of the county of the testator’s residence, and from the judgment of the county'court an appeal may be taken to the circuit court of the county.” (Sections 26 and 27 of chapter 113, General Statutes.)

When the county judge declines to act, the county clerk should notify the justice residing nearest the court-house, and if he can not act, then the next nearest justice. The justice presiding for the time being becomes, as to the case before him, the acting county judge, and neither litigant can, by his affidavit, compel him to vacate the bench. There is a provision in chapter 28, General Statutes, to the effect that “a party to a suit pending in a justice’s court shall have a change of venne to another justice when he shall make oath that he believes he can not have a fair trial in the justice’s court before whom the case is pending.” (Section 3 of article 18, chapter 28, General Statutes.) This has no application to the justice when acting as county judge, and he can not decline for the mere reason that the litigant believes he will not do him justice.

It results, 'therefore, that the justice of the peace must fill the seat made vacant by the county judge, and hear this case, and if the parties complain of his judgment, they can appeal to the circuit court.

When the judge feels that it is his duty to decline to preside, there is a much greater necessity for sustaining his action than in compelling him to vacate the bench, on the affidavit of parties who are more generally alarmed at the justice of his rulings than his prejudices against their cause.

While the statute permitting a circuit judge to be removed for the time being from the bench must be followed, for the reason alone that it is so written, the right of the litigant to require a judge to do so should never be enlarged by construction, as the evident tendency of such a practice is to lower the dignity of the bench, and encourage a statutory system of perjury at which professional pride revolts, and to which judicial integrity must submit. We will not, therefore, rule that because the statute applies to a judge of the circuit court, it should also apply to a county judge. '

This judgment as to the executors must be affirmed. The county judge is not complaining.  