Evans v. Humphreys

• Decision Date: 12 January 1940
• Citation: 281 Ky. 254
• Parties: Evans v. Humphrey, Judge.
• Court: United States State Supreme Court — District of Kentucky

Page 254

281 Ky. 254

Evans v. Humphrey, Judge.

Court of Appeals of Kentucky. In Court of Appeals.

January 12, 1940.

1. Prohibition. — Writs of prohibition will issue from the Court of Appeals to prohibit inferior courts threatening to proceed or proceeding in a matter in which they have no jurisdiction where there is no remedy through an application to an intermediate court, and where, although proceeding within their jurisdiction, they are exercising or about to exercise it erroneously, there is no adequate remedy by appeal or otherwise, and great injustice and irreparable injury would result to the applicant.

2. Prohibition. — The setting aside of an order of dismissal in the Jefferson circuit court within 60 days after its entry was within that court's jurisdiction, and a writ of prohibition would not issue on ground that court was threatening to proceed in a matter in which it had no jurisdiction, since even if the court's action in setting aside its order, if it did so, would be erroneous, erroneous action is not equivalent to a lack of jurisdiction.

3. Judges. — To prevent a miscarriage of justice, a question or method of practice may sometimes be suggested by the judge presiding over a cause without disqualification to preside, but that power should be very sparingly used, since a jury may not act in the dual capacity of judge and advocate.

4. Judges. — Judges are not mere umpires, but they are sworn to administer justice, and to that end they should see that their decrees are carried out.

5. Prohibition. A circuit judge's suggestion of practice to be pursued on trial of motion to set aside an order dismissing an action accompanied by statements indicating that he believed that union officer had procured order of dismissal by fraud justified issuing a writ of prohibition, where one of the main purposes behind motion was the appointment of a receiver which under statute would completely divest officer of control of administration of his office pending an appeal, and question whether officer had procured order of dismissal by fraud was one of the matters to be in issue on trial of motion (Civil Code of Practice, sec. 298).

Judges Thomas, Cammack and Tilford, dissenting.

James W. Stites for petitioner.

Churchill Humphrey for respondent.

Robert L. Sloss amicus curiae.

OPINION BY JUDGE FULTON.

Ordering writ of prohibition.

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 actions 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 — 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...