
    [File No. 1370.]
    STATE OF NORTH DAKOTA, Plaintiff, v. E. A. DONNELLY, Defendant.
    (276 N. W. 695.)
    Opinion filed December 24, 1937.
    
      Boy A. Ilvedson, State’s Attorney, and Milton K. Iliggins, Assistant Attorney General, for plaintiff.
    
      E. B. Sinkler and Q. O. BreJcJce and H. L. Ilalvorson, for defendant.
   Per Curiam.

At tbe regular November, 1937, term of tbe district court of Ward county a grand jury presented an accusation for tbe rer moval of tbe defendant as a county commissioner of said Ward county. Issue was joined on tbe 16th day of November, 1937. On tbe 19th day of November, 1937, tbe defendant filed an affidavit of prejudice against tbe lion. John C. Lowe, who presided as trial judge at said term of tbe district court. On the 26th day of November, 1937, this court entered an order designating tbe Hon. W. J. Kneesbaw, one of tbe judges of tbe second judicial district, to act in tbe place and stead of tbe said Judge Lowe. The regular December, 1937, term of tbe district court of Ward county opened on tbe 6th day of December, 1937, and tbe above entitled proceeding appeared upon tbe calendar of said term for trial. After tbe opening of said term and on or about tbe 7th day of December, 1937, tbe state filed an affidavit of prejudice against Judge Kneeshaw. Tbe statute relating to the filing of an affidavit of prejudice against a district judge provides: “When either party to a criminal or civil action pending in any of tbe district courts of tbe state, shall after issue joined and before the opening of any regular, special or adjourned term at which the cause is to be tried file an affidavit stating that be has reason to believe and does believe that be cannot have a fair and impartial trial or bearing before tbe judge of tbe district court by reason of the bias and prejudice of such judge, tbe court shall proceed no further in tbe action and shall thereupon be disqualified to do any further act in said cause; provided that where tbe information in a criminal action is filed in term time such affidavit may be filed at any time before trial.” Laws 1923, chap. 331, § 1.

Counsel for tbe state concede that plaintiff is not entitled to file am affidavit of prejudice against Judge Kneesbaw under tbe above quoted1 statutory provisions as a matter of right but they contend that the affidavits submitted by them show sufficient cause entitling tbe state to have another judge designated to sit in all further proceedings therein instead of Judge Kneeshaw and that this court should make such designation in the exercise of its jurisdiction of general superintending control over inferior courts.

We are agreed that tbe state is not entitled to file an affidavit against Judge Kneesbaw under tbe statute as a matter of right. And after.careful consideration of the affidavits submitted we are agreed that no showing has been made warranting this court in designating another judge to act in the place of Judge Kneeshaw, if the application is considered as one not within the statute.

The application of the state therefore is denied and the designation formerly made of Judge Kneeshaw will stand.

Upon the oral argument it was admitted that an order had been made by one of'the judges of the fifth judicial district (the district in which Ward county is situated), discharging the jury. This order was erroneous. The statute relating to the change of judges provides: “After the filing of such. affidavit of prejudice with the Clerk of the District Court no juror shall be excused except for good cause shown to the incoming judge and by such incoming judge.” Laws 1923, chap. 331, § 6. See also, State v. Reilly, 25 N. D. 339, 141 N. W. 720.

The erroneous discharge of the jury may be corrected by appropriate order by Judge Kneeshaw. ’

Christianson, Ch. J., and Burr, Nuessle, and Morris, JJ., concur.

Sature, J.' (disqualified) did not participate.  