Bass v. Minich

• Decision Date: 04 October 1937
• Docket Number: 4-4699
• Parties: BASS v. MINICH
• Court: Arkansas Supreme Court

109 S.W.2d 139

194 Ark. 589

BASS v. MINICH

4-4699

Supreme Court of Arkansas

October 4, 1937

Appeal from Arkansas Chancery Court, Southern District; Harry T Wooldridge, Chancellor; affirmed.

Decree affirmed.

G. W Botts, for appellant.

Rowell Rowell & Dickey and W. A. Leach, for appellees.

OPINION

BUTLER, J.

Four points are raised and argued for reversal, the first being that the decree of the trial court is void because of disqualification of the chancellor to hear and determine the issues presented.

1. The contention as to the disqualification of the trial judge is grounded on the fact that when the suit was first filed, and before he became the judge of the court he was made a party defendant as special administrator of A. W. Nunn, deceased. In our examination of the record we have been unable to discover any formal petition directed to the judge suggesting his disqualification. The only record relating to this matter seems to be the following entry on the docket of the court: "Motion of defendant to disqualify court for reason that court was named as special administrator for A. W. Nunn, deceased, in the original complaint filed in the case on September 5, 1933. Overruled and exceptions saved." The suggestion of disqualification must have been grounded upon the fact that the judge was named defendant for the estate of A. W. Nunn. It seems clear, however, that this estate had no interest in the matters involved in the litigation and a disclaimer of any such interest was prepared and filed in the case.

Appellant insists that there was interest shown because the answer of the administrator, after setting out the formal disclaimer, concludes as follows: "He adopts the answer and cross-complaint of the said Rubye A. Collier and the said C. M. Ferguson & Son heretofore filed herein, and prays the same relief and all other and further relief." It is clear that no importance can be attached to the language of the answer above quoted, for if the administrator of the Nunn estate had no interest in the litigation he was entitled to no relief save an order dismissing him as a party to the suit. In overruling the motion, the judge clearly indicated that in his opinion he had no interest in the result of the litigation such as would work his disqualification, and if counsel thought otherwise, it was his duty to make proof of such facts as he thought necessary to establish the disqualification. No effort of this kind was made. No affidavit was filed relating to the disqualification of the judge nor any proof offered on that subject.

In the case of Ingram v. Raiford, 174 Ark. 1127, 298 S.W. 507, the following rule is announced with approval and is conclusive on the question of the disqualification of the judge: "Unless it is where the affidavit filed is considered conclusive, there is no presumption that a judge is disqualified, the burden being on the party asserting it to present facts showing such disqualification. The evidence must clearly show that a ground exists. A prima facie case only is not sufficient. 33 C. J., 1017, § 190. And in Ruling Case Law it is said: 'If the facts alleged are not admitted by the judge or are denied by the adverse party, it is the duty of the party objecting to lay before the judge proof of their truth for his determination.' 15 R. C. L., 539, § 27."

2. It is assigned as error and argued that this case should be reversed on the ground that no competent testimony was introduced to establish the issues on behalf of the appellees in the instant case; that the testimony introduced was that of W. E. Collier, W. B. Sanders, trustee, E. B. Minich, T. P. Bass and H. H. Ferguson taken in a former case and transcribed and filed as depositions in the instant proceeding. It is insisted that it is not shown that any of these witnesses are dead or beyond the jurisdiction of the trial court, and that it does not appear that the testimony taken in the former case was between the same parties and relating to the same issues as in the case at bar. We have carefully examined the record, and are unable to find any objection to the testimony offered by the appellees save that contained in the "Motion to Suppress Depositions, filed 1/9/36." This is a motion to suppress the deposition of John H. Hooker and the testimony of W. B. Sanders and W. B. Collier with all the exhibits thereto. We have, also, been unable to find any testimony abstracted as given by W. B. Sanders or John H. Hooker. In reciting the testimony of the witnesses upon which the case is submitted, no reference is made to any testimony given by Sanders or Hooker. This leaves only the testimony of W. E. Collier, to which objection was made in the "Motion to Suppress." In Minich v. Bass, 189 Ark. 1171, 70 S.W.2d 1039, the testimony of Collier was given and transcribed and introduced at the trial of the instant case. A part of this testimony relates to Collier's contention that Bass was not in possession of the lands involved under a verbal contract of purchase, but only under an option to purchase, and that no part of the consideration for his option had been paid. This testimony, therefore, is both competent and relevant on the issue presented in the case at bar as to whether or not appellant had, in fact, paid anything on the purchase price and what balance, if any, was still unpaid. The testimony of the other witnesses complained of related to the same question and was, therefore, competent and relevant to the issues here involved. So far as we have been able to discover, no objection was made to the testimony of any of the witnesses, except that of Collier, and no objection having been made to its introduction, appellant must be deemed to have waived the manner and form in which it was offered. There is no doubt but that W. E. Collier was dead at the time this case was submitted. This affirmatively appears in the record where his death is suggested and a special administrator appointed. Appellant insists that the suggestion of Collier's death and the appointment of a special administrator is no proof of his death. We think, however, that this establishes prima facie the death of Collier, and was sufficient to lay the foundation for the introduction of his former testimony.

3. The real question in this case is that raised by appellant's plea of res judicata. Appellant contends that if such plea was not available, the trial court erred in refusing to give judgment in his favor on his counterclaim for the money alleged to have been paid by him on the purchase price of the property, and to declare a vendee's lien for the satisfaction thereof. The plea of res judicata is based upon the contention that the issues involved in the instant case are the same as those adjudicated in favor of the appellant in the cases of Minich v. Bass, 183 Ark. 350, 36 S.W.2d 66 and Minich v. Bass, supra. The records in those cases are here presented for our consideration, with much of the testimony, but we are of the opinion that the issues there raised and determined can best be stated in the language of this court. In the first case, 183 Ark. 350, 36 S.W.2d 66, we said: "This suit in unlawful detainer and for the possession of lots 13 and 14 in block 14 in the incorporated town of Gillett was brought in the circuit court of Arkansas county, southern district, by appellant against appellee. It was alleged in the complaint that appellee entered into possession of this property under a verbal lease with the then owner, W. B. Sanders, trustee, for the term of five months beginning July 1st and ending December 31st, 1929, at a monthly rental of $ 25, and, although notified of the purchase of the property by appellant, and to vacate same in thirty days after...