City of Biloxi v. Cawley

• Decision Date: 25 May 1976
• Docket Number: No. 48635,48635
• Parties: CITY OF BILOXI, Mississippi v. James O. CAWLEY et al.
• Court: Mississippi Supreme Court

Page 749

332 So.2d 749

CITY OF BILOXI, Mississippi v. James O. CAWLEY et al.

No. 48635.

Supreme Court of Mississippi.

May 25, 1976.

Watkins, Pyle, Ludlam, Winter & Stennis, Jackson, Pringle & Pringle, Biloxi, Mize, Thompson & Blass, Gulfport, for appellant.

Kelly McKoin, Louis Hengen, Biloxi, Greaves, Terry & Hunter, Gulfport, for appellees.

Before PATTERSON, ROBERTSON and SUGG, JJ.

SUGG, Justice:

This appeal is from a decree of the Chancery Court of the Second Judicial District of Harrison County holding that the ordinance of the City of Biloxi proposing to annex additional territory was not reasonable.

The City first contends that the chancellor should have recused himself from hearing the case and further, following the entry of the final decree, should have set the decree aside when the City filed a motion for that purpose. This contention is based on a statement contained in the affidavit of one of the attorneys for the City attached to the motion to set aside the decree wherein it is alleged that the chancellor made the following statement:

I agree that the people in the territory proposed to be annexed should have the right to vote on the question of their being taken into the municipality through an annexation proceeding. However, the present statutes of the State of Mississippi do not provide for such an election and this Court can't change the statutes.

In Yazoo & Mississippi Valley R.R. v. Kirk, 102 Miss. 41, 58 So. 710 (1912), the circuit judge hearing the case was disqualified under Section 165 of the Constitution of 1890 because he was related to the plaintiff's attorney. The Court held that in such case the disqualification of the judge may be waived by the consent of the parties and the judge, and his judgment is not void per se but only voidable, hence his disqualification must be timely suggested or it will be considered waived. The Court also held that, when defendant's attorneys did not learn of the facts disqualifying the judge until after a verdict in the case, an objection was timely if made on a motion for a new trial.

In other cases we have held that a party desiring to suggest the disqualification of a judge must do so before the trial of the case or as soon as counsel knows of the facts of disqualification. McCune v. Commercial Pub. Co., 148 Miss. 164, 114 So. 268 (1927), and Shireman v. Wildberger, 125 Miss. 499, 87 So. 657 (1921). In McCune the Court stated:

Courts are not to be trifled with in such matters. Judges do not have any desire to sit in cases where they are disqualified for any reason, and it is only fair that notice be given the judge of any such disqualification before he hears the case so that he may recuse himself. Any other rule might result in an unfair advantage being taken in a case where an attorney, who moves against a judge, might wait until after he could ascertain whether the decision would be for or against him; and, if against him, he would file a motion to recuse, but if for him, he would accept it without complaint. (148 Miss. at 172, 114 So. at 269).

The statement attributed to the chancellor was made before the case was tried but the City did not file a motion suggesting that he recuse himself until after the final decree was entered. The motion to set aside the decree on the ground that the chancellor was biased is not well taken for two reasons: first, the City elected to proceed with the trial without suggesting that the chancellor recuse himself and is bound by its election; second, the statement of the chancellor does not reflect any bias or prejudice and the fact that the City was not successful in its lawsuit does not give credence to its argument that the chancellor was biased. It is not uncommon for judges to be called on to apply law with which they may not personally agree, but this they must do because it is implicit in our judicial system that judges follow the law. The statement of the chancellor amounted to no more than his personal opinion that he thought people should have the right to vote on the question of annexation, but he was careful to note that his personal belief was not the law and he could not change the statutory law on the subject.

The City next argues that since the chancellor in an annexation case is limited to the question of whether the annexation ordinance is reasonable, the rule concerning reversal of dinding of facts by the chancellor should not be applied as rigidly as in those cases where the chancellor is not limited to the determination of one question. This was answered adversely to the argument of the City in City of Picayune v. Quick & Grice, Inc., 238 Miss. 429, 117 So.2d 718 (1960), in which we held:

(I)t is a well-settled rule in our jurisprudence...