State Ex Rel. Kahn v. Tazwell , 126 Or. 585 ( 1928 )

Motion to recall mandate denied September 25, 1928. ON MOTION TO RECALL MANDATE. (270 P. 486.) Since the issuance of a peremptory writ of mandamus herein holding that the Circuit Court for Multnomah County had jurisdiction to try and determine an action pending in that court wherein Adolph Kahn is plaintiff and the New York Life Insurance Company is defendant, and directing that court to proceed with the trial of said cause, and the issuance of the mandate in said cause, a petition to recall or modify the mandate has been filed.

The petition recites that the Honorable GEORGE TAZWELL, who was named as the defendant in the original mandamus proceeding, was presiding judge of said court at the time of the issuance of the writ and, as such presiding judge, had authority under the rules of that court to assign causes pending in that court to the various judges thereof for trial and that he is not now presiding judge. It also recites that Judge TAZWELL now construes the writ as directing him personally to proceed with the trial of said cause and not to permit the cause to be tried by any other judge of that court.

Such was not the meaning of the mandate. The authority to determine what judge of a Circuit Court in any district in which there is more than one judge shall exercise the judicial powers of that court or try any particular cause pending therein is vested in the judges of that court.

There being no uncertainty as to the meaning or effect of the mandate issued herein, the motion must be overruled, and it is so ordered.

MOTION TO RECALL MANDATE OVERRULED.