Adams v. Gardner

• Decision Date: 08 June 1917
• Parties: ADAMS v. GARDNER, JUDGE.
• Court: Kentucky Court of Appeals

195 S.W. 412

176 Ky. 252

ADAMS v. GARDNER, JUDGE.

Court of Appeals of Kentucky.

June 8, 1917

Appeal from Circuit Court, Magoffin County.

A. H Adams was adjudged guilty of contempt by D. W. Gardner Judge, and he appeals. Reversed.

N. P Adams and M. F. Patrick, both of Salyersville, for appellant.

W. C Marshall, of Frankfort, for appellee.

MILLER J.

In May, 1916, B. J. Elam was appointed receiver of the Salyersville Gas Company in the action of Continental Supply Company v. Salyersville Gas Company, then pending in the Magoffin circuit court.

At the October, 1916, term of that court, Judge D. W. Gardner, the presiding judge, entered an order upon the motion of the Continental Supply Company directing Elam as receiver to make a full and complete report and settlement before the master commissioner. The master filed his report on November 17, 1916, and both the Continental Supply Company and Elam filed exceptions thereto. On November 27, 1916, the court entered this order:

"It is ordered by the court that B. J. Elam, after inspection of settlements be, and he is, discharged as receiver of the Salyersville Gas Company."

On the same day John Salyer was appointed receiver for the Salyersville Gas Company, and he qualified as such, as required by law.

There is nothing to show that Elam had any notice of the action of the court discharging him as receiver, and we understand it is not contended that he did have notice thereof. This is borne out by the fact that on the same day the court entered another order which recited that Elam had tendered his resignation as receiver, at a former day of that term of the court, and that the court accepted the same and appointed Salyer as receiver in Elam's stead; and the order further directed Elam to turn over to Salyer, his successor, all the property of every kind in his hands belonging to the Salyersville Gas Company.

Presumably this last order was entered upon the theory that the previous order of the same day discharging Elam, without notice and an opportunity to be heard, as well as the appointment of Salyer, was premature and erroneous. There is nothing in the record to show that Elam had any notice of the order last above referred to; but, as it recites that the court acted upon Elam's resignation, it was entered evidently upon the theory that no notice to Elam was necessary.

On December 1st Salyer filed his affidavit showing that he, as receiver, had demanded of Elam the property of the Salyersville Gas Company, and that Elam had refused to surrender it. At the same time Elam appeared in court, and, having announced that he had not tendered his resignation, the attorney for the plaintiff asked his removal; whereupon the court gave Elam time until 2 o'clock of that day to show that he had not presented his resignation, and why he should not be removed as receiver. Elam filed a demurrer to the rule against him, and the demurrer was overruled on the same day. Thereupon Elam made a motion to set aside and vacate the order appointing Salyer as receiver and directing Elam to deliver to Salyer the property belonging to the Salyersville Gas Company, upon the ground that he had never resigned his office as receiver; and, there being no vacancy in the office of receiver, the court was without jurisdiction to appoint Salyer. At the same time Elam as receiver filed a demurrer to the order appointing Salyer as receiver and directing Elam to turn over to Salyer the property of the Salyersville Gas Company; and the court overruled the demurrer.

Elam, by his attorney, A. H. Adams, the appellant, then filed his affidavit seeking to depose Judge Gardner as circuit judge under section 968 of the Kentucky Statutes. The affidavit stated three grounds why Judge Gardner should not sit in the case, and why Elam believed he could not secure a fair and impartial hearing on his motion to set aside and vacate the orders above referred to, and on the trial of his exceptions to the commissioner's report, as follows: (1) That Judge Gardner was personally interested in the result of the trial of said motions and exceptions because, while a candidate for the office of circuit judge, he for the purpose of securing votes and support in said election, had agreed and promised to appoint Salyer receiver in this case; (2) that Judge Gardner was a brother of J. H. Gardner, who had a suit pending in the United States District Court at Jackson, Ky. against the Salyersville Gas Company, seeking to obtain a judgment against it for the sum of $10,000, and that in the event J. H. Gardner should obtain judgment the company would be unable to pay the judgment, and J. H. Gardner would thereby become the sole owner of the gas company and its effects; and (3) that Elam was the son-in-law of A. T. Patrick, who had defeated Judge Gardner for circuit judge in 1915 in the old Thirty-First judicial district (before the Thirty-Sixth judicial district was created in 1916); that Judge Gardner had defeated W. R. Prater for circuit judge in the new Thirty-Sixth judicial district in November, 1916; that in those elections Elam had supported Patrick and Prater, respectively; and that Judge Patrick, who was then the acting judge of the Magoffin circuit court, had originally appointed Elam receiver for the Salyersville Gas Company.

The affidavit further stated that these election contests were active and heated; but the only charge made in this connection is that during these elections Judge Gardner made such promises and alliances with the people interested in the result of this motion and trial that he could not and would not decide this case or motion "in favor of Elam."

Judge Gardner held the affidavit insufficient, and entered an order which in part reads as follows:

"The court upon inspection of the above affidavit adjudges that B. J. Elam, who filed the above affidavit, and A. H. Adams, attorney, who presented same, are each in contempt of court, and, being present, each is hereby declared so; and the court refuses to hear any further motion from B. J. Elam, and hereby removes him as receiver of the Salyersville Gas Company."

On the same day the court entered this further separate order relating to Adams:

"The defendant A. H. Adams, who was adjudged in contempt of court by the above order, will not be permitted to file any pleadings or make any motions in this court until he purges himself of said contempt; to which defendant excepts, and prays an appeal to the Court of Appeals, which is granted."

All of the foregoing orders, beginning with the order filing Salyer's affidavit showing that Elam had not complied by surrendering the property, were entered on December 2, 1916 Adams appearing and acting as attorney for Elam. Two days later, on ...