Dickenson v. Parks

• Decision Date: 29 March 1932
• Citation: 104 Fla. 577,140 So. 459
• Parties: DICKENSON v. PARKS, Circuit Judge.
• Court: Florida Supreme Court

140 So. 459

104 Fla. 577

DICKENSON v. PARKS, Circuit Judge.

Florida Supreme Court

March 29, 1932

En Banc.

Original proceeding by Julia I. Dickenson, a feme sole, for a writ of prohibition to L. L. Parks, as Judge of the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County.

Writ granted.

COUNSEL

Dickenson & Lake and Edwin R. Dickenson, all of Tampa, for relator.

Sutton Tillman & Reeves, of Tampa, for respondent.

OPINION

TERRELL, J.

In May 1931, Hillsborough county, through its board of county commissioners, brought a creditor's bill or suit for an accounting against W. A. Dickenson, Julia I. Dickenson, and Fidelity & Casualty Company of New York. The bill of complaint was filed in the circuit court of Hillsborough county, Judge F. M. Robles and Judge L. L. Parks presiding. In June, 1931, no order having been made in the cause, and Judge Robles having entered his certificate of disqualification, Julia I. Dickenson moved to disqualify Judge L. L. Parks on the ground of prejudice. Judge Parks overruled the motion for his disqualification, and Julia I Dickenson at once filed her suggestion for writ of prohibition in this court. A rule to show cause was issued and to said rule respondent, L. L. Parks, has entered his return.

The return to the rule to show cause presents two questions for our determination; viz. Is the county of Hillsborough a necessary party to this proceeding? And, Was the motion to disqualify Judge Parks properly overruled?

As to whether or not Hillsborough county, the complainant in the creditor's bill, was a necessary party to the proceeding in prohibition, it is not out of place to say that we are here dealing with the common-law writ of prohibition, that at common law said writ was sued out in the name of the crown or the state, if the suit complained of was brought by a private person, he might be joined as defendant, but, when the suit was prosecuted on behalf of the government, the writ was directed to the court only. This rule prevails in the United States where not modified by statute. In some jurisdictions the only necessary defendant is the tribunal whose proceedings are sought to be restrained, unless the statute or rule of court requires other interested persons to be made parties, or, at least, to be given notice of the proceeding and afforded an opportunity to resist it. 22 R. C. L. 28.

The common-law practice has generally been followed in this state. We have no statute nor rule of court which requires other interested persons to be made parties to the suggestion for the writ, though section 3586, Revised General Statutes of 1920 (section 5451, Compiled General Laws of 1927), requires that the rule to show cause shall be directed to and served on the inferior court and the parties plaintiff in the suit therein pending. The rule to show cause in the instant case does not appear to have been so directed, but it was directed to and served on the judge of that court, and he has made his return thereto. He is the essential party respondent, and ordinarily we would pronounce the service and return sufficient, but, if rights are involved which make it essential that the parties plaintiff in the inferior court be served with and given an opportunity to plead to the rule to show cause, it may on proper showing be amended and the proceeding take that course. Ex parte Indiana Transportation Co., 242 U.S. 281, 37 S.Ct. 126, 61 L.Ed. 301.

It is settled law in this state that prohibition may be an appropriate remedy to prevent judicial action, when the judge is disqualified, as well as when the judge is without jurisdiction to act in the cause. State ex rel. Reynolds v. White, 40 Fla. 297, 24 So. 160; State ex rel. Burr v. Whitney, 66 Fla. 24, 63 So. 299; State ex rel. Bank of America v. Rowe, 96 Fla. 277, 118 So. 5.

Did the motion to disqualify Judge Parks comport with the requirements of the law authorizing such motions. It was grounded on the 'prejudice of the judge,' and was made pursuant to section 2674, Revised General Statutes of 1920 (section 4341, Compiled General Laws of 1927). It was supported by the affidavit and certificate of the movant, which in turn were supported by the affidavit of two reputable citizens, as the statute requires.

It is contended by the respondent that said affidavit was insufficient in law to show prejudice on the part of Judge Parks, and that consequently it was properly rejected and the motion to disqualify properly overruled. We think this holding was erroneous. Omitting the formal parts, the affidavit is as follows:

'Before the undersigned authority, personally appeared Julia I. Dickenson, who being first duly sworn according to law, disposes and says, that she is a party to an action or proceeding now pending in the Circuit Court of the Thirteenth Judicial Circuit of Florida in and for Hillsborough County, in Chancery, to-wit, the above entitled cause. Affiant further says that she fears that she will not receive a fair trial in the court where the said suit is pending on account of the prejudice of the judge of said court, to-wit, L. L. Parks, before whom the same cause has been set down, in favor of the adverse party, and also fears that she will not receive a fair trial in the said court where this cause is now pending as aforesaid on account of the prejudice of the said judge of the said court, to-with, L. L. Parks, before whom the same has been set down, against her.

Affiant further says that the facts and reasons for her belief as above stated, that such bias or prejudice exists in the mind of the said Judge against her and in favor of the adverse party, is this to-wit, that the said L. L. Parks for many years prior to his appointment on the bench as Circuit Judge of this Court, and up to about the time of his appointment as Circuit Judge of this court, was a member of the law firm of Shackleford & Parks, which said law firm consisted of T. M. Shackleford, senior member of the firm, and the said L. L. Parks as the junior member of the firm, and that the testimony in this case to be offered by both parties, complainant and defendants, will consist almost entirely of the testimony of T. M. Shackleford, for the complainant and Peter O. Knight for the defendants, and that a decision of the matters involved wil depend almost entirely upon credit given by the said Judge to the testimony of these two gentlemen, and that during the time the said T. M. Shackleford and the said L. L. Parks were associated together as law partners, and ever since said time, there has existed between them the closest friendship and confidential relations, and that they are yet closest personal friends, and there is still existing that close relationship between them, and that by reason of his said relations with, and association with the said T. M. Shackleford, the said L. L. Parks will be biased and prejudiced in favor of the cause of the complainant and against this defendant.

'And this affiant further says, that the reason why she believes that the said L. L. Parks will be prejudiced against her personally is the fact that in 1928 in a certain cause...