Brick Corp. v. District Ct. 24 N. D. 28, 32, 138 N. W. 988. In the instant matter, peculiar circumstances exist in accordance with the demands and showing of the parties for an early and speedy trial. Circumstances have also arisen from the later showing made before this court, which serve to indicate that it is questionable whether a fair and impartial trial can be now had in the county of Ramsey. This does not necessarily reflect on the discretion of the disqualified trial judge, who ordered a transfer of the action to that county, since these circumstances, that a fair and impartial trial may not now be there had, have since arisen. Furthermore, the district judge, against whom the affidavit of prejudice was filed, has been placed peculiarly in an embarrassing position in exercising his discretion, by reason of the fact that he was defeated by the petitioner as a candidate for the office of district judge just shortly prior to the hearing had in this case before him. Likewise, the same might be stated of the Honorable F. E. Fisk, the other judge in such district, if, perchance, upon a remand of this cause, the disqualified judge should request the other judge to act.
If perchance, upon a remand of this matter to the disqualified court and judge, proceedings should be taken either through the voluntary action of both of such judges, so requesting the designation of another judge by this court, or if for any reason questions of interest of such judge in the outcome of this criminal litigation should be involved and injected, a further application to this court might be made, and further delay might occur in the hearing and determination of this criminal cause.
The duty of selecting a county free from prejudice is cast upon the presiding judge. Murphy v. District Ct. 14 N. D. 542, 546, 105 N. W. 728, 9 Ann. Cas. 170. Under the statute the disqualified judge is not deprived of jurisdiction to order the transfer to another county. Comp. Laws 1913, § 10,766; State v. White, 21 N. D. 444, 131 N. W. 261. Ordinarily the discretion of such disqualified trial judge will not be overruled unless it has been manifestly abused. Murphy v. District Ct., supra, 547. But in the instant case it appears that the order of transfer as made is at least irregular, and must, in any event, be revised so as to comply with the statute, and other circumstances appear which properly, under the circumstances of this case in the administration of justice, may well require the superintending control of this court to be exercised.
Both parties are requesting a speedy trial. Both parties have stated upon oral argument that they desire a trial in a county where it may be
