Bond v. Bond

• Decision Date: 12 April 1928
• Parties: BOND v. BOND.
• Court: Maine Supreme Court

141 A. 833

BOND

v. BOND.

Supreme Judicial Court of Maine.

April 12, 1928.

consequences, if he continues it, and a course of treatment seriously endangering wife is none the less cruel, regardless of motive.

Exceptions from Superior Court, Kennebec County, at Law.

Libel for divorce by Dorothy V. Bond against Charles TV. Bond. Decree for libelant, and libelee brings exception. Exceptions overruled.

Argued before WILSON, C. J., and PHILBROOK, DUNN, BARNES, BASSETT, and PATTANGALL, JJ.

Locke, Perkins & Williamson, of Augusta, for libelant.

Frederick G. Katzman and John H. Vahey, both of Plymouth, Mass., and Frederic J. Laughlin and Jacob H. Berman, both of Portland, for libelee.

WILSON, C. J. A libel for divorce on which a decree was made by the judge of the superior court for the county of Kennebec granting a divorce to the libelant. It comes to this court on exceptions by the libelee to the decree granting the divorce and to numerous rulings made by the justice below.

Prior to the hearing the libelee filed a motion under section 98, c. 82, R S., that the cause be transferred to the Supreme Judicial Court, assigning as the ground, in the language of the statute, that the judge of the superior court was disqualified by reason of "interest, relationship and other lawful causes."

To this motion was attached an affidavit of the libelee setting forth specifically the grounds constituting the alleged disqualification. Prior to the hearing on the motion, the judge detached the affidavit from the motion on the ground that it contained matters that were irrelevant, inadmissible in evidence, false, and scandalous, and refused to receive it or permit it to be placed upon the files of the court.

Counsel for the libelee then offered the affidavit as evidence bearing on the motion. The affidavit was thereupon excluded as evidence. To the rulings of the court that the affidavit was not properly a part of the motion, and that the libelant had a right to be heard upon the motion, exceptions were taken by the libelee and allowed. Exception was also taken and allowed to the refusal to receive the affidavit as evidence and to a refusal to strike out certain evidence and to the denial of the motion.

During the hearing on the libel, exceptions were also taken to the admission of evidence describing the wedding and the class of people attending and to the admission and exclusion of certain testimony and to the refusal to strike out certain answers as unresponsive. None of these exceptions, however, are strenuously urged.

The only exceptions seriously argued before this court were the exceptions above noted, taken at the hearing on the motion to transfer the cause to the Supreme Judicial Court, the exceptions to the admission of certain conversations or statements by the libelee to the libelant when no one else was present, upon the ground that they were privileged, and an exception to the decree granting the divorce.

We have examined all the exceptions taken to the admission and exclusion of evidence and to the refusal to strike out certain testimony, and find no error in the rulings of the court below, or, if technical error appears in any instance, it does not appear that the libelee was aggrieved thereby.

The exceptions to the rulings of the judge in connection with the hearing and refusal to grant the motion to transfer the cause must be overruled.

The superior court of Kennebec county is a local court with a single presiding justice. Upon its creation (P. L. 1878, c. 10, § 12), the Legislature provided that, in the event of the disqualification of the judge to hear any case by reason of "interest or other lawful cause, * * * said case shall thereupon be transferred to the * * * Supreme Judicial Court for said county." This provision has been retained, and, with the insertion of the word "relationship" as a ground, is now found in section 98 of chapter 82, R. S., under which the motion in this case was filed.

The statute does not prescribe the proceedings by which the question of disqualification may be raised. In many states, as in Kentucky, the filing of an affidavit is required by statute, and, if sufficient on its face to disqualify, the judge cannot sit. Powers v. Com., 114 Ky. 237, 70 S. W. 644, 1050, 71 S. W. 494. Also see People v. Compton, 123 Cal. 403, 56 P. 44; Henry v. Speer (C. C. A.) 201 F. 869. Whether the rules of the superior court for Kennebec county require such a motion to be supported by an affidavit does not appear from the record. On general principles, it would seem to be a proper procedure. Gifford v. Clark, 70 Me. 94. If the motion or accompanying affidavit contained irrelevant, false, and scandalous matter tending to improperly bring the presiding justice into disrepute, we have no question of the authority of the judge to order the irrelevant and scandalous matter to be stricken out, leaving only such statement of facts as might properly be considered in support of the petition.

However, if a supporting affidavit is filed under the rules of court, or in accordance with a general practice in case of motions based on facts outside the record, it is not done in the interest of the moving party, but to show his good faith and apprise the court and the other party of the grounds on which the motion is based. To detach it from the motion, therefore, could not prejudice the moving party in the case, no advantage being taken of the lack of It, and when, as in the case at bar, he was permitted to offer presumably all evidence in his possession in support of the motion. It is only by virtue of a statute that an affidavit is alone held a sufficient ground for recusation in other jurisdictions.

Nor do we think the libelee was aggrieved by the ruling of the court that the libelant had a right to be heard on the issue raised by the motion, or the refusal to receive the affidavit as evidence. It contained matter obviously based on hearsay, and, inasmuch as all the oral evidence the libelee offered in support of the facts contained in the affidavit was received, in no event was he aggrieved by its exclusion. Every litigant is interested in the tribunal before which his cause shall be heard. The libelant in this case had selected, as she had a right to do, one of two courts having jurisdiction in the county. She also had a right to be heard on an issue, which, if the motion was well grounded, involved her own good faith.

The issue raised by the exception to the dismissal of the motion is whether the facts proven by the evidence offered in support of the motion, as a matter of law, disqualified the presiding justice from hearing the cause. The grounds for disqualification now named in the statute are "interest, relationship, or other lawful cause." The "interest" referred to in such a statute is some pecuniary interest in the outcome of the case. It is not claimed that either interest of this nature or disqualifying relationship exist here. The only question, therefore, is what disqualifying grounds are included in the phrase "other lawful cause," and whether any such grounds so clearly existed as to render a ruling to the contrary by the judge below error in law.

At common law, the only ground for recusation of a judge was pecuniary interest or relationship. Bias or prejudice was not sufficient. 3 Blackstone's Com. *p. 361; Fulton v. Longshore, 156 Ala. 611, 613, 46 So. 989, 19 L. R. A. (N. S.) 602; Bryan v. State, 41 Fla. 643, 658, 659, 26 So. 1022; In re Davis Estate, 11 Mont. 1, 18, 27 P. 342; People v. Compton, 123 Cal. 403, 413, 56 P. 44; McCauley v. Weller, 12 Cal. 500; Clyme v. Kennedy, 64 Conn. 310, 29 A. 539, 42 Am. St. Rep. 194; Elliott v. Hipp, 134 Ga. 844, 848, 68 S. E. 736, 137 Am. St. Rep. 272, 20 Ann. Cas. 423; Turner v. Com., 2 Mete. (59 Ky.) 619, 626; Russell v. Belcher, 76 Me. 501.

"By the laws of England in the time of Bracton and Fleta," says Blackstone, "a judge might be recused for good cause, but the law is now otherwise; and it is held that judges and justices cannot be challenged, for the law will not suppose a possibility of bias or prejudice in a judge who is sworn to administer impartial justice."

"The presumption is, that the court will not be influenced by the animosities of the In California in 1859, the only grounds fixed by the statute as sufficient to disqualify a judge were: (1) When the judge was a party or interested; (2) when he was related to one of the parties within the third degree; (3) when he had been attorney or counsel for either party." In McCauley v. Weller, supra, the court said:

"These are the only causes which work a disqualification of a judicial officer. The exhibition by a judge of partisan feeling, or the unnecessary expression of an opinion upon the justice or merits of the controversy, though exceedingly indecorous, improper and reprehensible, as calculated to throw suspicion upon the judgments of the court and bring the administration of justice into contempt, are not, under our statute, sufficient to authorize a change of venue on the ground that the judge is disqualified from sitting."

The modern trend has been to add by legislation other grounds of recusation to those recognized at common law, Johnson v. State, 31 Tex. Cr. R. 456, 20 S. W. 985, and cases above cited; and in a few cases the courts have held other grounds than those recognized at common law sufficient to disqualify, Moses v. Julian, 45 N. H. 52, 56, 84 Am. Dec. 114.

In the latter case, the court laid down, in addition to interest and relationship, the following as sufficient grounds for disqualification: (1) When the judge has received important benefits or donation from either party; (2) when the relation of master and servant or guardian and ward existed; (3) when a lawsuit was pending between the judge and one of the parties or he had indicated enmity by declarations or threats shortly before the suit—any one of which would be clearly sufficient for a judge to...