(1) Every coroner shall serve and execute process of every kind and perform all other duties of the sheriff when the sheriff is a party to the case, or where affidavit is made and filed as provided in this section, and in all such cases he shall exercise the powers and proceed in the same manner as prescribed for the sheriff in the performance of similar duties.
(2) Whenever any party, his agent, or attorney makes and files with the clerk of the proper court an affidavit stating that he believes that the sheriff of such county by reason of either partiality, prejudice, consanguinity, or interest, will not faithfully perform his duties in any suit commenced or about to be commenced in such court, the clerk shall direct the original process in such suit to the coroner, who shall execute the process in like manner as the sheriff might or should have done.
Source: G.L. 509, 510. G.S. 613, 614. R.S. 08: 1298, 1299. C.L. 8773, 8774. CSA: C. 45, 120, 121. CRS 53: 35-6-5. C.R.S. 1963: 35-6-5.
The provisions of this section are mandatory where there is a compliance with the statute by a litigating party, and a coroner may be disqualified in the same manner as a sheriff. Litch v. People ex rel. Town of Sterling, 19 Colo. App. 433, 75 P. 1083 (1904); Kelliher v. People, 71 Colo. 202, 205 P. 274 (1922); Montez v. People, 110 Colo. 208, 132 P.2d 970 (1942).
Where the sheriff is party to an action all process therein must be served by the coroner, and a special panel of jurors summoned by the sheriff in such case, must be discharged on motion. Toenniges v. Drake, 7 Colo. 471, 4 P. 790 (1884); General Film Co. v. McAfee, 58 Colo. 344, 145 P. 707 (1914); Wise v. Toner, 65 Colo. 420, 176 P. 838 (1918).
In no event may a sheriff be disqualified until a proper affidavit is filed with the court clerk, which should be done at the earliest practicable opportunity. Hoffman v. People, 72 Colo. 552, 212 P. 848 (1923).
The term "party" as used in this section means the person whose name is expressly mentioned in the record as plaintiff or defendant, or one of the plaintiffs or defendants. Wise v. Toner, 65 Colo. 420, 176 P. 838 (1918).
Regularly, when the sheriff is a party to an action, his official character should appear by allegation in the declaration or by suggestion of record; courts, however, take judicial notice of who are their own officers, and, in the absence of any proof to the contrary, the court in this instance was justified in presuming the identity of the defendant and the sheriff. Coon v. Rigden, 4 Colo. 275 (1878).
It is immaterial whether a defendant sheriff has any pecuniary interest in the case, since, in any event, he is "a party to the case" within the meaning of this section. Wise v. Toner, 65 Colo. 420, 176 P. 838 (1918).
Sheriff as trustee of land held proper party. Where a sheriff as trustee held the legal title to the land involved, it was held that such a trustee holding the legal title to the premises in controversy, although he has no beneficial interest therein, is a proper party to a final determination of the controversy, and is disqualified to serve process in the suit. Wise v. Toner, 65 Colo. 420, 176 P. 838 (1918).
The term "suit" in this section includes criminal proceedings. Kelliher v. People, 71 Colo. 202, 205 P. 274 (1922).
Because this section is not one relating exclusively to either criminal or civil procedure, but is one simply relating to duties of the sheriff and coroner, and the legislative intent was to substitute the coroner for the sheriff in any case, not merely in a civil action, where the affidavit is filed. Kelliher v. People, 71 Colo. 202, 205 P. 274 (1922).
Objection waived. Where the court issued an order for an open venire for eight more men and ordered the sheriff to procure that number and both the sheriff and the coroner were witnesses for the people, and objection was made to service by the sheriff, but since no affidavit of disqualification was filed as required by this section and no request was made for service by an elisor, objection was waived. Randal v. People, 113 Colo. 235, 156 P.2d 125 (1945).
Duty to court to declare disqualification. Whenever affidavits are filed showing disqualification of either sheriff or coroner to serve process in a case, it is the duty of the court to act, without counter-affidavits, and declare the officer disqualified. Montez v. People, 110 Colo. 208, 132 P.2d 970 (1942).