Ex parte Clanahan, 2 Div. 332

• Decision Date: 20 May 1954
• Docket Number: 2 Div. 332
• Citation: 50 A.L.R.2d 134,72 So.2d 833,261 Ala. 87
• Parties: , 50 A.L.R.2d 134 Ex parte CLANAHAN et al.
• Court: Alabama Supreme Court

Page 833

72 So.2d 833

261 Ala. 87, 50 A.L.R.2d 134

Ex parte CLANAHAN et al.

2 Div. 332.

Supreme Court of Alabama.

May 20, 1954.

Wilkinson & Skinner, Birmingham, for petitioner.

Adams & Gillmore, Grove Hill, McCorvey, Turner, Rogers, Johnstone & Adams, Mobile and Grady W. Hurst, Jr., Chatom, for respondent.

STAKELY, Justice.

Judge Joe M. Pelham, Jr., is the presiding Judge of the Circuit Court of Choctaw County, in Equity. An original bill of complaint was filed in the aforesaid court on April 15, 1950, by C. B. Morgan, Blanche Morgan et al., against Ellen Nix Clanahan et al., and certain lands in Choctaw County, Alabama. Certain phases of this litigation were before the court when it rendered its decision in Ex parte Arrington, 259 Ala. 243, 66 So.2d 96.

The petitioners in the present proceeding, who are respondents and cross complainants in the lower court, have filed an original application for mandamus in this court, in which they seek to have Judge Pelham certify his alleged disqualification to try the issues of the aforesaid cause. The present proceedings here are submitted on the petition for mandamus, a motion to strike certain allegations therein, a demurrer thereto and the answer of Judge Pelham.

C. B. Morgan and Blanche Morgan are residents of Choctaw County, Alabama. They claim to be in possession of and to own the surface and a mineral interest in 240 acres of land in Choctaw County, Alabama. The other complainants in the bill filed in the lower court, about thirty in number, claim that they own an interest in the minerals in the aforesaid lands, either a fee simple interest, a royalty interest or an oil and gas leasehold interest. All of the complainants in the original bill filed in the lower court are represented by Adams and Gillmore, Attorneys of Grove Hill, and Grady W. Hurst, Jr., an Attorney of Chatom, Alabama.

The bill of complaint is filed pursuant to Article 2 of Chapter 32, § 1116 et seq., Title 7, Code of Alabama of 1940, and is a proceeding in rem to quiet title to the land described in the bill of complaint. The procedural requirements of the aforesaid statutes were followed in respect to the aforesaid cause. The bill of complaint seeks to quiet title against a considerable number of persons, who are alleged to claim some title to, interest in, lien or incumbrance upon the respondent land or any part thereof. It is alleged in the bill that one Daniel Nix died intestate in 1862 and that his heirs or devisees are unknown to complainants, except as set out in the bill of complaint. The petitioners before this court and who are respondents and cross complainants in the suit to quiet title in the lower court, are alleged to be the descendants of Daniel Nix.

On November 28, 1951, the respondents and cross complainants in the lower court filed a motion to require Judge Pelham to certify his disqualification to preside as Judge in the aforesaid cause, alleging the following ground as the basis of the motion:

'Because the Honorable Grady Hearst, Jr., one of the Solicitors of Record for the complainants, is a son-in-law of the Honorable Joe Pelham, Jr., the Judge of the First Judicial Circuit of Alabama, and by reason of such relation is interested in the outcome of this litigation, and by reason of said relationship to the Honorable Joe Pelham, Jr., the Hon. Joe Pelham, Jr., is disqualified to hear and determine this case.'

It was agreed between the parties in open court that the aforesaid motion should be submitted and considered on the motion and affidavit of R. R. Rhodes. No evidence in support of or against the motion, other than this affidavit, was presented to Judge Pelham. The affidavit of R. R. Rhodes is as follows:

'I, R. R. Rhodes, do hearby make the following statement on oath, to be offered, by agreement of counsel, as evidence in lieu of examination of myself as witness, for submission on motion filed by Wilkerson & Skinner, as solicitors for respondents, and on motion filed by J. Massey Edgar, as Guardian ad litem, seeking the disqualification of Hon. Joe M. Pelham, Jr., as judge to try this litigation:

'Grady Hurst, Jr., one of the solicitors for complainants in this cause is a son-in-law of the said Joe M. Pelham, Jr.; the said Grady Hurst, Jr. had been employed in various matters by Magnolia Petroleum Company both prior and subsequent to the institution of this litigation; prior to the filing of this suit the said Grady Hurst, Jr. was employed by Magnolia Petroleum Company as one of the solicitors of record for complainants in this cause; it was then agreed between Magnolia Petroleum Company and the said Grady Hurst, Jr. that his compensation for acting as solicitor in this cause should be based upon a per diem rate which was agreed upon between Magnolia Petroleum Company and the said Grady Hurst, Jr., prior to the filing of the suit; the amount of said fee is in no manner contingent upon the successful outcome of the litigation; the amount to be paid him is the same, and shall be based upon the time devoted by him to the litigation, entirely without regard to whether complainants win or lose the lawsuit.

'Magnolia Petroleum Company is solvent, having a net worth of millions of dollars, and is financially able to pay Mr. Hurst the agreed fee in this case without regard to whether it is successful in this litigation or not. Said Magnolia Petroleum Company owns unencumbered property in Choctaw County, Alabama, worth many times the aggregate amount of Mr. Hurst's fee.'

On November 28, 1951, Judge Pelham made an order overruling the motion, holding that he was not disqualified to try the case.

As stated the cause is submitted here on a motion of the respondent Judge Pelham to strike certain allegations of the petition filed here on the theory that the allegations present matters which were not before Judge Pelham at the time he made his ruling in the lower court. We find it unnecessary, however, to consider this feature of the case because apart from the questions raised by the motion, we do not consider that Judge Pelham is disqualified to try the case.

It affirmatively appears from the record that Grady Hurst, Jr., is a son-in-law of Judge Pelham and one of the solicitors of record for the complainants in the lower court. The Magnolia Petroleum Company is one of many complainants in the bill of complaint. We do not appear to be concerned, however, with the status of the bill in respect to any of them, except Magnolia Petroleum Company. It seeks to have a decree of the court that the oil and gas leasehold estate in certain lands is vested in Magnolia Petroleum Company. An answer has been filed denying that Magnolia Petroleum Company has an oil and gas lease interest in the land. It affirmatively appears from the record that Grady Hurst, Jr., is employed upon a per diem basis and the amount of his fee is in no manner contingent upon the successful outcome of the litigation. He will be paid the same amount whether complainants win or lose the lawsuit.

The mandatory grounds of disqualification set forth in the statute, to which we shall refer, are not exclusive so as to eliminate grounds for disqualification under the common law. Ex parte Benson, 254 Ala. 47, 47 So.2d 180. Under the common law the mere fact that the trial judge is related to one of the attorneys does not disqualify the judge.

In Fulton v. Longshore, Probate Judge, 156 Ala. 611, 46 So. 989, 990, 19 L.R.A., N.S., 602, this court said:

'In Turner v. Com., 2 Metc. (Ky.) 626, the court said: 'At common law there were but two objections that went to the disqualifications of a judge to try a cause, to wit, interest in his own behalf in the result or being kin to others interested therein.''

In 30 Am.Jur. p. 782, § 73, it is observed:

'In the absence of a statute or constitutional provision to the contrary, the mere fact that a judge is related to one or more of the attorneys in a cause tried before him is no ground for his disqualification. * * *.'

See also 48 C.J.S. Judges, § 86, p. 1074.

Under the evidence it is clear that Judge Pelham has neither a pecuniary nor other personal interest in the result of the litigation. Ex parte State Bar Association, 92 Ala. 113, 8 So. 768, 12 L.R.A. 134; Bryce v. Burke, 172 Ala. 219, 55 So. 635; State ex rel. Miller v. Aldridge, 212 Ala. 660, 103 So. 835, 39 A.L.R. 1470; Medlin v. Taylor, 101 Ala. 239, 13 So. 310. The question then arises as to whether his relationship to Grady Hurst, Jr., is such as to disqualify him. The relationship is conceded but does Grady Hurst, Jr., have such an interest as to disqualify the Judge? As we shall see when we come to discuss the statute, Grady Hurst, Jr., does not have an interest in the result of the litigation. He may take pride in the successful outcome of the suit, but he has no interest in that which the suit concerns. Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565. Certainly there is nothing in the situation under the common law which causes us to require the judge to disqualify himself for bias or prejudice, when he considers himself qualified to fulfill his oath of office.

This brings us to a consideration of the statute to which we have referred. Section 6, Title 13, Code of 1940, provides as follows:

'No judge of any court, 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 consangunity or affinity * * *.'

Since it is conceded that Grady Hurst, Jr., is the son-in-law of Judge Pelham, the question for decision is whether Grady Hurst, Jr., is a party to the cause in the suit filed in the lower court within the meaning of § 6, Title 13, Code of 1940. The word 'party' as set out in § 6, Title 13, Code of 1940, is not to be interpreted as referring exclusively to parties of record. Crook v. Newborg & Son, 124 Ala. 479, 27 So. 432. That case, in construing § 2637 (now § 6, Title 13, Code of 1940),...