Crowley-Milner & Co. v. Reid

• Decision Date: 29 July 1927
• Docket Number: Motion No. 209.
• Citation: 239 Mich. 605,215 N.W. 29
• Court: Michigan Supreme Court
• Parties: CROWLEY-MILNER & CO. et al. v. REID, Circuit Judge.

239 Mich. 605

215 N.W. 29

CROWLEY-MILNER & CO. et al.

v.REID, Circuit Judge.

Motion No. 209.

Supreme Court of Michigan.

July 29, 1927.

Petition by Crowley-Milner & Co. and others for writs of mandamus and prohibition to Neil E. Reid, Circuit Judge of Macomb County, to review an order denying a motion to dismiss an application to transfer a cause to the Macomb circuit court. Writ of prohibition granted.

Argued before the Entire Court.

Bird and McDonald, JJ., dissenting. Stevenson, Butzel, Eaman & Long, Trowbridge, Lewis & Watkins, and Harry Helfman, all of Detroit (William L. Carpenter, of Detroit, of counsel), for petitioners.

S. Homer Ferguson, of Detroit, amicus curiae for the Third Judicial Circuit.

Lucking, Hanlon, Lucking & Van Auken, of Detroit, and Lungerhausen, Weeks, Lungerhausen & Neale, of Mt. Clemens (O. C. Lungerhausen, of Mt. Clemens, of counsel), for respondent.

BIRD, J.

Difference arose among the directors of the Crowley-Milner Company of Detroit after the death of Mr. Milner. Before that event the corporation was controlled by the deceased and the Crowleys. Mr. Emery, general manager of the company, purchased the Milner interest from his estate, and these shares, together with his own, gave him the control of the corporation. The question then arose, in what capacity did Mr. Emery purchase the Milner shares? This led to much controversy. The respective contentions of the parties did not yield to compromise, and a bill was filed by the Crowleys, praying, among other things, for a temporary injunction to enjoin Mr. Emery and his new board of directors from taking full control of the affairs of the corporation and from selling any of the stock so purchased from the Milner estate.

A hearing was had before Hon. Arthur Webster on the prayer for a temporary injunction, and the incidents of that hearing gave rise to this controversy. The differences which had arisen between the parties were gone into quite fully, and at the conclusion Judge Webster outlined his views at some length.

It is the claim of plaintiffs that, not only during the progress of the hearing, but in his opinion at the conclusion, Judge Webster manifested his prejudice and bias against the plaintiffs and their cause, and that he prejudged the merits of plaintiffs' main case, which were only incidentally involved in that hearing. It is further insisted that the bias and prejudce and the prejudgment were so marked that he was thereby disqualified from hearing the main case on the merits. But, notwithstanding the protests of plaintiffs to the presiding judge, Judge Webster was assigned to hear the case on the merits. Before the main case was reached, however, plaintiffs' attorneys made an application, under C. L. 1915, § 12342 et seq., to Hon. Neil Reid, circuit judge of Macomb county, for a transfer of said cause from the Wayne to the Macomb circuit court, on the grounds of bias and prejudice. Defendants appeared specially and objected to the jurisdiction of the Macomb county judge, and a motion in the nature of a demurrer was filed to dismiss the application. A hearing was had on this motion, and the question whether prejudice, bias, and prejudgment disqualified a circuit judge was the issue, with the addition of some questions of practice. Judge Reid held with plaintiffs, and denied the motion to dismiss. At this stage of affairs this court was appealed by defendant, and it issued an order to Judge Reid to show cause why a mandamus and a writ of prohibition should not issue, thereby transferring the same issue to this court.

The defendants argue that bias and prejudice are neither common law nor statutory grounds for a transfer of a case from one circuit to another in this state; that the causes for transfer depend entirely upon the statute; and that no authority can be found in the statute for transferring a cause on the ground of bias and prejudice. The statute which authorizes as transfer follows:

‘Sec. 3. Whenever any civil suit or proceeding shall be pending in any circuit court in this state, either on the law or equity side of said court, in which the judge of said court shall be interested as a party, or as a member of any corporation which is a party to said suit, or has heretofore been consulted or employed as counsel in the subject matter to be litigated in said suit, or in which for any other reason he would be excluded from sitting as judge at the trial thereof, the same may be transferred to some other circuit court in the manner hereinafter provided, or the judge of the circuit court in which such suit is pending may call in any other judge not disqualified to sit in such cause.’ Comp. Laws 1915, § 12342.

This statute recites specific causes which shall disqualify a judge, and then adds, ‘ or in which for any other reason he would be excluded from sitting as judge at the trial.’ It would be difficult for the Legislature to enumerate all the cause which might arise to disqualify a judge, especially those depending on questions of fact; therefore, it added a general clause to afford the opportunity of disqualifying them for other reasons than those enumerated. Under this clause plaintiffs insist that they have a right to have the case transferred, if they are able to show that Judge Webster is affected with prejudice or bias. Counsel for defendants say:

‘It is plain, we submit, that the phrase (section 12342) in the statutes, ‘or in which for any other reason he would be excluded from sitting as a judge at the trial thereof,’ relates to statutory reasons and includes the reasons which are found in the preceding sections of the statutes hereinbefore immediately referred to.'

The preceding statute (C. L. 1897, § 10105), for which this statute was substituted, did not contain the provision appearing in italics. There would be much force in defendants' argument under the preceding statute, but we cannot agree with the construction suggested under the present statute. The present statute includes certain causes of disqualification and makes the presumption conclusive that the judge is disqualified. Then it opens the way for the judge to be declared disqualified for any other reason which would exclude him from sitting in the particular case. This clause did not appear in the former statute which this statute displaced, and if we were to approve defendant's contention we would be saying in effect that the statute meant just the same after the injection of this clause as it did before. It is evident that the Legislature added this clause for some purpose, and that purpose, as it appears to us, was to increase the number of causes of disqualification which might be assigned against a circuit judge.

We think this clause is broad enough to permit of an objection on the ground of bias and prejudice, if the bias and prejudice charged are of such a character as to impair his impartiality and sway his judgment. Bias and prejudice might, or might not, work disqualification, depending upon the character of it. If it were of such a character as to prevent a fair and impartial trial, then the judge would be disqualified. On the other hand, if it were not of such a character and nature as to prevent him from dealing fairly and impartially with the parties, he would not be disqualified.

The following authorities will show the trend of legal decisions on the question whether bias and prejudice are grounds for the disqualification of a judge in a given case:

‘At the common law, as now administered in England and in the United States, bias or favor, not the result of interest or relationship, is not supposed to exist. The common law in this respect, however, has been modified in this country both by statute and the rulings of the courts, and where a person performing the functions of a judge must decide questions of fact, his prejudice against either of the parties sufficient to disqualify him as a juror equally disqualified him as a judge.’ 15 R. C. L. 530.

‘In the absence of statutory provision, bias or prejudice on the part of a judge does not disqualify him. In many states, however, there now exists statutes which expressly make the bias or prejudice of a judge a ground of disqualification. But disqualifying a judge on the ground of prejudice is so liable to abuse that some states have refused to adopt it, and even where it has been adopted its liability to abuse induces the most rigid construction of its terms. A statute making the alleged prejudice of a judge a ground of disqualification is valid. Even where the disqualification, by reason of bias or prejudice, is not expressly mentioned, it has been held to be comprehended in such statutory expressions as ‘otherwise disqualified to sit’; ‘cannot properly preside’; ‘otherwise unable’; and ‘other disability’; and ‘any legal cause.’ Even where the judge's prejudice does not constitute a ground for disqualification, if the charge is made and the facts alleged indicate the existence of prejudice, the appellate court will carefully scrutinize the record to see that no injustice has been done the complaining party.' 23 Cyc. 582.

‘At common law a judge might properly, of his own will, retire from the case on the ground of his bias or prejudice, it being discretionary with him to do so. While there are dicta to the effect that at common law a judge may be disqualified on the ground of bias or prejudice, it is generally held, in the absence of statutory provision, that bias or prejudice on the part of a judge, which is not based on interest, does not disqualify him. However, by force of constitutional or statutory provisions, his bias or may be the ground for his disqualification, in...