Cashin v. Murphy

• Decision Date: 13 April 1925
• Docket Number: 24642
• Court: Mississippi Supreme Court
• Parties: CASHIN et ux. v. MURPHY. [*]

103 So. 787

138 Miss. 853

CASHIN et ux. v. MURPHY. ^[*]

No. 24642

Supreme Court of Mississippi

April 13, 1925

Division A

1. JUDGES. Proper for judge, attacked by recusation motion, to hear and determine it, instead of surrendering the bench to another to pass thereon.

Where a judge is attacked by recusation motion, he need not surrender the bench to another to pass thereon, but properly passes on his own disqualification to sit in the case.

2 JUDGES. Ex parte affidavits inadmissible as evidence on recusation motion.

Ex parte affidavit is inadmissible on trial of a recusation motion, the same rules and laws of evidence applying to such motion as to any other cause in court.

3 JUDGES. Judge not disqualified to sit in case, unless connected with party by affinity or consanguinity, or pecuniarily interested.

Under Const. 1890, Section 165, and Code 1906, Sections 995, 996, 998 (Hemingway's Code, Sections 715, 716, 718), changing the common law only by the statement in the Constitution, a judge is disqualified to sit in a case only if connected with a party by affinity or consanguinity, or pecuniarily interested; bias or prejudice based on any other ground not being supposed to exist.

HON. E N. THOMAS, Chancellor.

APPEAL from chancery court of Humphreys county, HON. E. N. THOMAS, Chancellor.

Suit between J. M. Cashin and wife and C. M. Murphy. Recusation motions of the former parties were overruled, and they appeal. Affirmed and remanded.

Affirmed and remanded.

J. M. Cashin, pro se.

The attention of the court is respectfully directed to section 24 of the Constitution of Mississippi. The record shows a flagrant disregard of this section. It is submitted that the record will show such a course of conduct on the part of the chancellor in this case as to indicate that to compel appellant to submit the trial of this case before him would not only be a plain violation of appellant's constitutional rights, a mockery and a farce, but would tend to bring scandal and reproach upon the judicial department of the state. See the following authorities: Thomas v. State, 5 Howard (Miss.) 32; Y. & M. V. R. R. Co. v. Kirk, 102 Miss. 41, 58 So. 710; Ex parte Ellis, 3 Okla.Crim. 220, 105 P. 184, 25 L. R. A. (N. S.) 653; Rea v. State, 3 Okla. Cr. , 105 P. 184, 139 Am. St. Rep. 954; State v. Board of Education, 19 Wash. 8, 67 Am. St. Rep. 706; Moses v. Julian, 45 N.H. 52, 84 Am. Dec. 114; Johnson v. State (Texas), 20 S.W. 987; Slaven v. Wheeler, 58 Texas 23; Oakley v. Aspinwall, 3 N.Y. 547; Morehouse v. Morehouse (Cal.), 68 P. 976; State v. Nunez, 85 So. 52; State, ex rel. Martin v. Judge 29th Dist., 94 So. 389; 16 Stand Pro, p. 669; 15 R. C. L. 526; Day v. Day, 12 Idaho 556, 86 P. 531.

It is respectfully submitted that the order of the chancellor in overruling the motion is not entitled to any weight, because the chancellor in undertaking to pass upon his qualifications, over the objection of appellant, acted as a judge in his own case, which, as said by Lord Coke, is contrary to the principles of natural justice.

It is well known that: "As a rule, prejudice is honest, and bias may be innocent. In the very nature of the case, therefore, it is extremely difficult, if not impossible, for the mind so affected to realize, much less to judicially try its own impartiality." See People v. Upton, 56 P. 44; Morehouse v. Morehouse, 68 P. 977; Davis Est., 27 P. 342; Finlen v. Heinz, 75 P. 123, 3 Am. & Eng. Enc. of Law, 93.

Appellant insists that his right to have his case heard and tried by a fair and impartial judge does not depend upon any statutory, or even constitutional, provisions. His right arises from a higher source than either--it arises from those principles of right and justice which have been implanted in the laws of the Anglo-Saxon race since the days when the Barons wrested from King John at Runnymede the Magna Charta.

J. L. Williams, for appellee.

We submit that the gravamen of the motion is the allegation of personal dislike and prejudice on the part of the chancellor against him, and that it is not only not supported by any testimony introduced on the hearing, but the record affirmatively shows that such does not exist. If the chancellor decided cases against appellant, whether he was interested as attorney or litigant, he had the right to have the same corrected on appeal to this court, a right which has always been freely exercised by appellant But it is well settled that an incorrect ruling on the part of a judge does not show bias. State v. Morgan (La.), 77 So. 588.

The same case is authority for the proposition that the motion must set up facts rather than legal conclusions. See also, 15 R. C. L., 530. The cases cited in appellant's brief are mostly under constitutional or statutory provisions peculiar to the states where they arose, and have no application to the facts of the case at bar.

We do not care to reply to the vicious personal attack made on the chancellor in the brief, except to say that it is entirely unwarranted by the facts, and that the learned attorney has allowed his personal feelings in the case to carry him far adrift in this matter. This case is of course to be tried on the record, and not on the suspicions, beliefs, and emotions of appellant.

The chancellor has no right, unless the facts set up in the petition are true, to recuse himself, merely because it would be more pleasant to himself not to try the case. 84 Am. Dec. 117. It is as much his duty to try the case if he is not qualified as it is to refrain from acting if he is disqualified. 15 R. C. L. 539.

J. M. Cashin, pro se, in reply.

It is submitted that the chancellor erred in not sustaining the motion of the appellant to call in the chancellor of another district to hear and determine the recusation motion.

He is a party to that motion, and really the only party to it. While some authority to the contrary may be found, it is submitted that this case comes within the maxim that no one can be a judge in his own case. It is distinctly held by the supreme court of Louisiana in the cases cited in appellant's original brief herein that a judge is incompetent to determine his competency to try a case when that is challenged on the ground of bias and prejudice, and that he must either recuse himself or refer the matter to another judge for trial. And it was so held by the court in the absence of any statute regulating the matter. See too Stockwell v. Township Board, 22 Mich. 341; The Peninsula Railway Co. v. Howard, 20 Mich. 18.

The usual method of proving bias and prejudice on the part of a judge is by affidavits as to the acts and conduct of the judge. Day v. Day, 86 P. 531.

It is respectfully insisted that to compel this case to be tried by Chancellor THOMAS, a biased and prejudiced judge, would be a denial of right and justice, and a violation of section 24 of the Constitution. It is also insisted that said provision of the Constitution is a mandatory provision, and that the legislature neither by neglect to act, nor by legislation, can nullify a mandatory provision of the Constitution. It seems to be well settled in this country that such provisions of the Constitution as section 24 are self-executing, and require no legislative provision for their enforcement, and cannot be abridged or modified by any legislative or judicial act: See Law v. People, 87 Ill. 385; Davis v. Burke, 179 U.S. 399, 21 S.Ct. 210; 45 L.Ed. 249; Cooley on the Constitution, 98; Willis v. Maben, 48 Minn. 287, 65 N.W. 1110, 16 L. R. A. 281; State v. Kyle, 166 Mo. 287, 65 S.W. 763, 56 L. R. A. 115.

OPINION

MCGOWEN, J.

For some years litigation has been pending between these parties, and the style of this case is not unfamiliar to this court. The case is here now upon the recusation motion of J. M. Cashin and his wife, who, at the January, 1924, term of the court, filed their separate motions alleging that Chancellor E. N. Thomas, the presiding chancellor of that county and district, was disqualified because of bias and prejudice. Without quoting all of the movants' grievances against the chancellor, there is brought forward into this motion a similar motion which was made in 1922, which was overruled by the chancellor, and appeal therefrom prosecuted to this court. In the meantime the movant, J. M. Cashin, had presented a petition to the circuit judge, asking that his status as a lawyer be restored; he having been previously disbarred. The circuit judge, learning that the chancellor had imposed a sentence for contempt, required that he apologize to the circuit judge and to the chancellor, and Cashin went to Vicksburg with his father-in-law and apologized to Chancellor Thomas, they shook hands, the chancellor wrote a letter or otherwise informed the presiding circuit judge that Cashin had obeyed the request of the court, and, in the language of the chancellor, in the hotel at Vicksburg, after they shook hands, the chancellor told him he hoped he would do well and that he was disposed "to let bygones be bygones."

An affidavit of S. T. Ronan was filed, in which he made an ex parte affidavit in the city of Chicago to the effect that Chancellor Thomas had spoken in a sneering manner of J. M. Cashin's ability to pay money, the affiant, Ronan, stated to the chancellor that he thought he was in error; that Mr. Cashin, to his knowledge, had arranged with his father-in-law to be able to carry out the proposition which he had made with the chancellor with reference to the pending litigation, and that Chancellor Thomas remarked:

"Well, if Cashin's father-in-law had come in and said the matter would have been settled, it would have gone that way, or would have been settled in a moment."

The movant further alleged that in his absence the...