Finley v. Chamberlin

• Decision Date: 07 July 1903
• Parties: FINLEY et al. v. CHAMBERLIN.
• Court: Florida Supreme Court

35 So. 1

46 Fla. 581

FINLEY et al. v. CHAMBERLIN.

Florida Supreme Court, Division B.

July 7, 1903

Appeal from Circuit Court, Hillsborough County, Joseph B. Wall Judge.

Action by Enoch B. Chamberlin against Samuel Y. Finley, individually and as surviving partner, etc., and another. From a decree for complainant, defendants appeal. Reversed.

See 23 So. 559.

Syllabus by the Court

SYLLABUS

1. Upon collateral attack the jurisdiction of a court of general jurisdiction will be presumed unless the record disproves it.

2. A decree rendered by the circuit court to which a cause has been transferred from another circuit because of the disqualification of the judge of the court in which it was instituted is not void upon collateral attack because the facts showing such disqualification are imperfectly set out in the record.

3. The transmission of the original order or transfer, instead of a certified copy thereof, with the papers in the case, to the clerk of the court to which a cause has been transferred because of disqualification of the judge, is an irregularity only, and does not render the final decree entered in the cause void upon collateral attack.

COUNSEL S. Y. Finley, for appellants.

Hugh C Macfarlane, Thomas M. Shackleford, and James F. Glen, for appellee.

OPINION

MAXWELL J.

A bill was filed by Chamberlin to have the final decree entered against him in the previous suit of Finley et al. v Chamberlin, 23 So. 559, and the subsequent proceedings based thereon, declared null and void for want of jurisdiction in the court which rendered the decree. The suit had been commenced in Hillsborough county in the Sixth Circuit, and was transferred to Hernando county in the Fifth Circuit, because of the alleged disqualification of the judge of the former circuit to try the case. The only question which we need consider is the validity of this transfer which is attacked upon the ground that the record does not particularly recite the reason of the disqualification of the judge, and because the clerk of the court did not transmit with the papers a certificate of the order of transfer.

The transfer was based upon the following proceedings: On the 12th day of August, 1896, Chamberlin filed this motion in the cause: 'Now comes the above-named defendant, E. B. Chamberlin, by his solicitors, O. S. Farr and C. E. Johnson, and moves the court to refer the above-named case as provided in sections 19 and 20 of article 5 of the Constitution of the State of Florida, for the following reasons, to wit: We are informed and believe that a part of the services rendered by complainants upon which this action is based were performed while the judge of this court, then a practicing attorney, was a partner of one of the complainants, and in consequence thereof is interested in the result of this suit.'

On the 18th day of September, A. D. 1896, the judge of the Sixth Circuit filed the following certificate of disqualification:

'After mature consideration, and having my memory refreshed, I feel it my duty to hereby certify that the defendant herein once employed the firm of Finley & Phillips, which firm was composed of Lucius Finley and myself, engaged in the practice of law in the city of Tampa, Florida, and that said firm employed the complainant to assist us in obtaining patent, and to prevent any other than the defendant from obtaining a patent from the United States of America, and to prevent any one from trespassing upon the land upon which a lien is claimed in this suit, and I am therefore disqualified to hear and determine this case as judge of said court.

'Done and ordered at chambers, Tampa. Florida, this 18th day of September, A. D. 1896.

[Signed] Barron Phillips, Judge.'

The complainant Finley thereupon filed the following petition that the cause be removed to the next nearest circuit: 'Your petitioner. Samuel Y. Finley, a party to said cause which is pending in the circuit court of Hillsborough county, in chancery, respectfully showeth unto your honor that, from your honor's decision and order entered in said cause, your honor is disqualified by reason of having been consulted as an attorney of the said defendant prior to the commencement of said suit and before your honor became the judge of said court, and that said cause cannot be heard, tried, or determined by reason of the disqualification of your honor as the judge of said court. Your petitioner therefore prays that said cause be transferred to some other circuit court, as the law directs, and that your honor make an order removing said cause to circuit court in the next nearest circuit, as provided by law. And your petitioner will ever pray,' etc.

On November 14, 1896, the court made the following order upon this petition:

'Upon reading and considering the above petition, it appearing that the undersigned judge of said court is disqualified to hear, try, and determine said cause by reason of the disqualification mentioned in said petition, it is hereby ordered that said cause be removed to the circuit court of Hernando county in the Fifth Judicial Circuit of Florida, it being a circuit court in the next nearest circuit, as provided by law in such cases made and provided. Done and ordered at chambers, Tampa, Fla., this the 14th day of November, A. D. 1896.

'[Signed] Barron Phillips, Judge.'

The suit was instituted to have certain fees for legal services rendered to Chamberlin in recovering or acquiring a patent to certain land declared and enforced as a lien upon the land.

From the proceedings quoted above it appears that upon the suggestion of Chamberlin the judge before whom the case was pending filed a certificate that he was disqualified to try the cause, because the law firm of which he was a member had been employed by Chamberlin, and had employed the complainant to assist them in obtaining a patent for the land and preventing trespass upon it. This certificate merely prevented disposition of the case where it was then pending, without removing it to a jurisdiction where it could be heard and determined. The complainant Finley, therefore, in order to have his case adjudicated, filed his petition that the cause be transferred, basing it upon the previous certificate of disqualification, but stating the ground of disqualification somewhat inaccurately as 'by reason of [the judge] having been consulted as an attorney of the said defendant prior to the commencement of said writ.' The order of transfer was thereupon made, reciting that it was made because of 'the disqualification mentioned in said petition.'

This order, and the petition upon which it was made, are both merely supplementary to the previous adjudication of the judge that he was disqualified to try the case, and it is probable that the ground of disqualification, as stated in his certificate, should be held to be the basis of the transfer of the cause. But it is immaterial whether the order be treated as based upon this or upon the statement of disqualification contained in the petition. Either statement would tend to show disqualification, but in so indefinite a way as not to make it certain.

If this were a direct attack upon the order of transfer and subsequent decree, they should be set aside under the repeated adjudication of this court that a legal cause for the transfer must not only be judicially ascertained, but must appear in the order of transfer, or otherwise, in the record. Swepson v....