Evans v. Humphrey

• Decision Date: 12 January 1940
• Citation: 135 S.W.2d 915,281 Ky. 254
• Parties: EVANS v. HUMPHREY, Judge.
• Court: Kentucky Court of Appeals

135 S.W.2d 915

281 Ky. 254

EVANS v. HUMPHREY, Judge.

Court of Appeals of Kentucky

January 12, 1940

THOMAS CAMMACK, and TILFORD, JJ., dissenting.

Original proceeding by E. Lewis Evans for a writ of prohibition against the Honorable Churchill Humphrey, Judge, Jefferson Circuit Court, Chancery Branch, First Division.

Writ ordered to issue in accordance with opinion.

James W. Stites, of Louisville, for petitioner.

Churchill Humphrey, of Louisville, for respondent.

Robert L. Sloss, of Louisville, amicus curiae.

FULTON Justice.

The petition for a writ of prohibition filed by E. Lewis Evans against the respondent, Hon. Churchill Humphrey, Judge of the Jefferson Circuit Court, Chancery Branch, First Division alleges that the petitioner is the duly elected and acting President-Secretary-Treasurer of the Tobacco Workers International Union and states the facts on which he relies for a writ of prohibition in substance as follows:

On July 15, 1939, an action was filed in the Jefferson Circuit Court by certain local unions of the Tobacco Workers International Union, on relation of certain members of the locals and by Edward H. Weyler, Secretary-Treasurer of the Kentucky State Federation of Labor against E. Lewis Evans, International President-Secretary-Treasurer of the Tobacco Workers International Union and the six vice-presidents comprising the International Executive Board, in which the plaintiff sought a mandatory injunction requiring the defendants to take the steps provided for by the constitution of the T. W I. U. for calling and holding a convention. This action also sought the appointment of a receiver to take charge of the money, property, records and other affairs of the T. W. I. U. This case was tried before the respondent, Hon. Churchill Humphrey, Judge of the Jefferson Circuit Court, Chancery Branch, First Division, who entered a judgment in fifteen numbered paragraphs granting the relief prayed for as to the calling of the convention. By the twelfth paragraph of the judgment the matter of receivership was reserved. On appeal to this court the judgment was affirmed in Tobacco Workers International Union v. Weyler, 280 Ky. 355, 132 S.W.2d 754.

Pursuant to this judgment a convention of the T.W.I.U. convened in Louisville on October 23, 1939, and lasted approximately 10 days. At the first meeting of the convention a resolution was adopted directing the attorney for the T.W.I.U. to appear before respondent and dismiss the action. Pursuant to this resolution, or at least after its adoption, an agreed order of dismissal was entered, the concluding paragraphs of which read:

"Whereas, the aforesaid judgment has now been fully performed, with the exception of Paragraph 12 thereof providing that the matter of receivership is reserved;

"On motion of plaintiffs, by counsel, it is now hereby ordered that the above styled action is hereby dismissed at the costs of the defendants."

No further steps were taken in the action until after the adjournment of the convention on November 3.

On November 6 a second action was filed in the Jefferson Circuit Court against the petitioner, Evans, by the T.W.I.U. on relation of certain members constituting the Operating Board of Trustees of the T. W. I. U. and by these members individually, the action being filed by attorneys who represented the plaintiffs in the first action. This latter action was removed by the petitioner to the Federal Court, where it is now pending. In that action it was alleged that the petitioner had been suspended from office and that the plaintiffs were constituted an operating committee to take over the assets and property of the T. W. I. U. The prayer of the petition was that a receiver be appointed to take over the funds and property of the T.W.I.U. from the petitioner and that he be enjoined from continuing to interfere with or obstruct plaintiffs from exercising the power which the petitioner formerly held as International President-Secretary-Treasurer of the T.W.I.U. and that the Lincoln Bank and Trust Company, which was made a party, be enjoined from paying out any funds of the Tobacco Workers International Union in its control except on the order of the receiver to be appointed.

On November 9 the respondent, without request and on his own motion, called together in conference the attorneys for the plaintiffs in both actions and the attorneys for the petitioner. A portion of this conference was reported by the official stenographer, the reported portion being this statement dictated by the respondent:

"The Court: This situation has disturbed me, and for that reason I have asked counsel for both sides to meet with me, and they were present, as set forth in the caption hereto.

"I want to preface my remarks by saying that I have only admiration and envy for the practice of the case on the part of the defendant Evans, and I hope that when I resume the practice of law I can do as well.

"However, I am personally of the opinion that the defendant, Evans, may, by fraud, have undertaken to evade the orders of this particular court. Frankly, as long as I preside over this court I intend to invoke the Napoleanic maxim of never giving an order that cannot be carried out, and enforcing every order that is given.

"I have reason to suspect that the defendant Evans induced plaintiff to dissolve injunction in order to evade the court's order for a fair convention. This may be so, or it may not be so. If it is so, the court proposes, if it can, to recapture jurisdiction--not of the new case, but of the old one--The order for dismissing the suit is not sixty days old. Whether this court has the power to revoke that order and reinstate the original judgment, I do not know, but the court is going to suggest that inquiry be made and the court will next Tuesday, November 14, 1939, entertain a motion to revoke the order dismissing the original injunction, and reinstating the order. The court does not direct this to be done--but says that it will do so.

"Now, the practice will have to be very exact so that the defendant may be deprived of no rights in the premises--either in the right of removal if this court by reinstating the old case is actually starting a new one--or in the right of review if the court errs in ruling, or presumption, if it exceeds its jurisdiction. Motion will be made with an accompanying statement, and the statement will be subject to challenge as to fact by affidavit or oral proof, such as counsel may agree on, and will set the fraud out if it is true.

"The fraud I allude to is this: I think it is possible--I don't say probable but possible- [135 S.W.2d 917] --that defendant Evans got this suit dismissal knowing at the time that at a time when he was not under its jurisdiction, by covin and by skill in parliamentary law equal to covin--he could defeat the wishes of the majority of the convention. If the court does set aside the order and reinstate the judgment and the plaintiff wishes further relief at the foot of the decree it will proceed by supplemental petition, so that the record may disclose, and leave open to the defendant, any form of review or correction that it has."

It is alleged in the petition for the writ of prohibition that the dictated statement above was not all that was said at the conference.

Following the conference and the suggestion of respondent, the plaintiffs in the original action served notice on the petitioner that on November 28 they would make a motion to set aside the agreed order dismissing the action and that in the event the motion was sustained they would further move for the appointment of a receiver for the T. W. I. U. At the same time three intervening petitioners, members of the union, served notice that they would move the court to permit them to file an intervening petition making them parties to the action.

After notice of these motions the petitioner filed a motion that the respondent vacate the bench and in support thereof filed an affidavit setting out a history of the litigation and the action of respondent in calling and holding the conference referred to. The substance of the remarks of respondent contained in the dictated statement were set out but the point blank charge is made in the affidavit that the respondent stated "That he was of the opinion that this affiant had been guilty of fraud in securing the dismissal of the action and had violated the injunction granted in said action."

The respondent overruled the motion for him to vacate the bench whereupon the petitioner filed this petition for a writ of prohibition. The case is now before us for decision on the allegations of the petition and the response thereto, which response does not...