Chi., B. & Q. R. Co. v. Kellogg

• Decision Date: 03 March 1898
• Citation: 54 Neb. 138,74 N.W. 403
• Court: Nebraska Supreme Court
• Parties: CHICAGO, B. & Q. R. CO. v. KELLOGG.

54 Neb. 138

74 N.W. 403

CHICAGO, B. & Q. R. CO.

v.KELLOGG.

Supreme Court of Nebraska.

March 3, 1898.

Syllabus by the Court.

1.A judge who presided at the trial of an action, and rendered judgment therein, is not, from that fact, disqualified, by section 37, c. 19, Comp. St., to hear another suit, brought to vacate the judgment in the former one.

2.A judge, to be “interested,” within the meaning of said section, and therefore disqualified, must be pecuniarily interested, or his interest in the litigation must be such that he will gain or lose something by the result.

3.The practice of causing unexamined witnesses--except those called as experts--to be sequestered, so that they may not hear the testimony of the witness being examined, is a good one, as it tends to elicit the truth, and promote the ends of justice.

4.But whether such witnesses shall be sequestered, in any case, is a matter resting in the discretion of the trial court; and, in the absence of a showing that the court abused its discretion to the prejudice of the complaining party, its action in the premises will not be disturbed.

5.Evidence examined, and held to sustain the finding of the district court that no improper communication had been made to the jury, while deliberating on their verdict in the first action, by the officer having them in charge.

Error to district court, Phelps county; Beall, Judge.

Action by George Kellogg against the Chicago, Burlington & Quincy Railroad Company.Judgment for plaintiff.Suit for new trial instituted at subsequent term dismissed.Defendant brings error.Affirmed.J. W. Deweese, W. S. Morlan, and F. E. Bishop, for plaintiff in error.

A. J. Shafer, S. A. Dravo, and Stewart & Munger, for defendant in error.

RAGAN, C.

In the district court of Phelps county, in an action at law for damages, George Kellogg recovered a judgment against the Chicago, Burlington & Quincy Railroad Company.After the adjournment of the term of court at which such judgment was rendered, the railway company brought this suit for a new trial of the law action.The court entered a judgment dismissing the action, and the railway company has filed here a petition in error to review this judgment.

1.The Honorable F. B. Beall was the judge who presided at the trial of the law case, and he also presided at the trial of the case, at bar.When this case came on for trial, counsel for the railway company objected to Judge Beall hearing it, claiming that he was interested, and therefore disqualified from hearing this case.The railway company's objections were overruled, and Judge Beall heard and determined the case at bar; and this action is the first argument made here for a reversal of the judgment.Section 37, c. 19, Comp. St., provides that: “A judge * * * is disqualified from acting as such * * * in any case wherein he is interested. * * *” But the word “interested,” found in this section of the statute, probably means “pecuniarily interested,” or at least it means that a judge, to be disqualified from hearing a case, must be in such a situation with reference to it or the parties that he will gain or lose something by the result of the action on trial.It is not claimed that Judge Beall will gain or lose anything from the result of this action.It is not pretended that he has any pecuniary interest in the matter.The argument seems to be that, because he rendered the law judgment, he would naturally be desirous that the same should be sustained, and that, therefore, his inclination would be to defeat this suit.It can never be presumed that a judge will permit his desires or inclinations to control his decision in any manner; and that he tried the case and rendered the judgment which is sought to be vacated by this action does not render him interested and disqualified, within the meaning of said section of the statute.

2.Before the court entered upon the trial of this action, the railway company moved the court to sequester the witnesses by having them removed to some place where the unexamined witnesses could not hear the testimony of those who were on the stand.The overruling of this motion is the second assignment of error here.The practice is not regulated by statute in this state, except to the extent that magistrates hearing he preliminary examination of...