Barton v. Brown

¶1 It is not necessary here to pass upon the constitutionality of this statute, nor upon the sufficiency of the affidavit. Both of these matters have been argued in another proceeding now before the court, and have not yet been decided. Under the ruling in State ex rel. Johnson v. Circuit Court, 114 Or. 6 (233 Pac. 563), it is clear that the affidavit of prejudice came too late, and, in fact, defendant so conceded upon the argument. It may be said that appellant’s brief was filed on the twenty-ninth day of May, 1924, and the decision in State ex rel. Johnson v. Circuit Court, supra, had not then been rendered. Prior to that time, the question of the time for filing an affidavit of prejudice had not been passed upon and was still in nubibus in this state. But, adhering to that opinion, as we do, it is clear that the defendant’s affidavit came too late and the court properly overruled it. This being the case, it is not necessary to discuss the question of good and bad faith, or any of the other questions raised on the brief. The judgment of the Circuit Court is affirmed. Affirmed.