Crook v. Newberg

• Decision Date: 31 January 1900
• Citation: 124 Ala. 479,27 So. 432
• Parties: CROOK, JUDGE v. NEWBERG ET AL.
• Court: Alabama Supreme Court

27 So. 432

124 Ala. 479

CROOK, JUDGE v. NEWBERG ET AL.

Supreme Court of Alabama

January 31, 1900

Appeal from city court of Anniston; James W. Lapsley, Judge.

Application for mandamus by D. L. Newberg & Son against Emmett F. Crook judge. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Matthews & Whiteside and W. P. Acker, for appellant.

Knox &amp Bowie and Blackwell & Keith, for appellees.

TYSON J.

This appeal is prosecuted from a judgment rendered by the city court of Anniston awarding a writ of mandamus to compel the appellant to certify his incompetency as probate judge to hear and determine the settlement of an account of one Gammon as administrator. The settlement to be made by the administrator is one required under section 298 and 299 of the Code after declaration of insolvency of the estate. One of the objections urged to the competency of the appellant in the probate court, and upon which in part was based the demand that he certify his disqualifications to hear and determine the matters involved in said settlement, as appears from the petition for the writ, was that S. L. Crook, a first cousin of the appellant, is one of the sureties upon the bond of Gammon as administrator. The facts of suretyship and the consanguinity of the surety S. L. Crook to the appellant, as alleged, are admitted in the answer to the petition. It has been too often adjudicated by this court to be now a matter of doubt, much less of dispute, that sureties upon an administrator's bond are bound and concluded by the decree against their principal primarily and to the same extent as their principal is bound. Banks v. Speers, 97 Ala. 563, 11 So. 841, and authorities there cited. So then, the question fairly presented may be said to be this Is a judge disqualified from determining a cause in which a decree or judgment must be rendered, in which a first cousin, though not a party to the proceeding eo nomine, has an interest in the result of the trial? Section 2637 of the Code provides that "no judge of any court, chancellor, county commissioner, or justice must sit in any cause or proceeding in which he is interested, or related to either party within the fourth degree of consanguinity or affinity, or in which he has been of counsel, or in which is called in question the validity of any judgment or judicial proceeding in which he was of counsel, or the validity or construction of any instrument or paper prepared or signed by him as counsel or attorney, without the consent of the parties entered or record, or put in writing, if the court is not of record." By the very letter of the statute, if S. L. Crook had been the administrator, instead of a surety, the probate judge, his first cousin, would have been disqualified. Plowman v. Henderson, 59 Ala. 559. The contention is that S. L. Crook not being a party to the record, and his liability as surety being remote or contingent, the disqualifying causes enumerated in the statute do not apply. The purpose of the statute is to secure to litigants a fair and impartial trial by an impartial and unbiased tribunal. Next in importance to the duty of rendering a righteous judgment is that of doing it in such manner as will beget no suspicion of the fairness or integrity of the judge. "The principle of disqualification is to have no technical or strict construction, but is to be broadly applied to all classes of cases where one is appointed to decide the rights of his fellow citizens. *** Disqualifying statutes are not to be construed in a strict, technical sense, but broadly, with liberality. The term 'party,' used to indicate persons to whom the judge is related, and who are connected with the litigation, is not confined to parties of record." 12 Am. & Eng. Enc. Law, p. 41, and notes 3 and 4, p. 42.

The supreme court of Texas, in the case of Gains v Barr, 60 Tex. 676, construing a statute which contains substantially the same language as ours, said: "A narrow or contracted construction of the term 'party,' which confines it to the very person named on the docket as such, and excludes such as stand precisely in the same relation, would often defeat the end had in view, of having justice impartially administered, free from the bias and influence produced by the interest held in the cause by the judge or his relations." In Foot v. Morgan, 1 Hill, 654, where the language of the statute was, "No judge can sit who is of such affinity to either party that he might be challenged as a juror," the court said, "There can be no doubt that the statute extends to the party beneficially interested, as well as the real party." In Moses v. Julian, 45 N.H. 52, will be found an exhaustive disertation, in which a great many decisions are cited upon the subject of the disqualification of judges by reason of interest, relationship or affinity, and bias or prejudice. Speaking directly to the point here under consideration, the learned judge said, "Relationship or affinity to either party in interest, though not a party to the suit, is a cause of recusation by either." The same construction has been placed upon our statute (Code, § 2637) by this court in Gill v. State, 61 Ala. 171, where it was said, after quoting section 540 of Code 1876 in hæc verba: "The parties to the present proceeding were the state of Alabama as complaining party, and Joe Gill as defendant. These were the only parties. It is manifest that the present case does not fall within the letter of the statute. But, if we confine the rule to the strict letter of section 540 of the Code, we thereby declare a judge may sit in judgment on a criminal who took the life of his nearest relative. Nay, more; for offenses less than homicide, we declare that a judge may try an offender for a public offense against his own person or property. According to the stern morality of the common law, a judge is required to be legally indifferent between the parties. Relationship, usually within the fourth degree of the civil law, the law, in its severe but humane ethics, regards as a bias that unsettles the perfect equipoise that justice demands." These...