First National Bank v. McGuire

• Decision Date: 21 November 1899
• Parties: FIRST NATIONAL BANK OF RAPID CITY, Plaintiff and respondent, v. MICHAEL McGUIRE, Defendant and appellant.
• Court: South Dakota Supreme Court

12 S.D. 226

80 N.W. 1074

FIRST NATIONAL BANK OF RAPID CITY, Plaintiff and respondent, v. MICHAEL McGUIRE,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Pennington County, SD

Hon. William Gardner, Judge.

Reversed

Charles W. Brown and James Boyd

Attorneys for appellant.

Fowler & Whitfield

Attorneys for respondent.

Opinion filed November 21, 1899

CORSON, P. J.

This was an action for the foreclosure of pledged collateral given by the defendant to secure the pay merit of two certain promissory notes, one for $5,000 and the other for $1,500, payable to the order of the plaintiff. the complaint is in the usual form. To this complaint defendant filed an answer admitting certain allegations in the complaint denying certain others, and interposing a counterclaim. Be fore the trial of the case the defendant presented the following; petition and application:

“To the Above-Entitled Court: Petition of Michael McGuire, the above-named defendant, respectfully shows that he is informed and believes, and therefore alleges, that the wife of the Hon. William Gardner, the presiding judge of this court, is the owner of fifty shares of the capital stock of the plaintiff corporation, and is also a director thereof the total stock of the said corporation being five hundred shares; each of the par value of one hundred dollars, and that your petitioner fears that the said judge might for that reason be unconsciously prejudiced or biased in the consideration o. said cause. Wherefore your petitioner respectfully prays that the said judge will not proceed further herein,but will cause the said action to be placed upon the special calendar, and be set down for trial before some other circuit judge of the said state.”

On the hearing of this petition the court made the following order:

“… And upon said hearing it appearing to the satisfaction of the court that defendant has submitted to the jurisdiction of the court by applying for and obtaining an injunctional order regarding the same subject-matter … and the court having heard the arguments of counsel for and against said petition, and being fully advised in the premises, … it is ordered that said petition be, and the same is, in all things denied. … To which ruling and decision the defendant at the time duly excepted, and said exception is by the court allowed and settled.”

The cause was tried by the court, and it made findings of fact and entered judgment in favor of the plaintiff, and from this judgment and an order denying a new trial the defendant has appealed to this court.

No bill of exceptions has been settled in the action. The respondents therefore make the point in this case that, there being no bill of exceptions, the petition and order of the circuit court are not properly before this court for review. Respondents are correct in their contention, unless the petition and order are properly part of the judgment roll. We are inclined to the opinion that they do constitute a part of such roll. Section 5013, Comp. Laws, defining what shall constitute the judgment roll, reads as follows:

“Unless the party or his attorney shall furnish the judgment; roll, the clerk, immediately after entering the judgment, shall attach together, and file the following papers, which shall constitute the judgment roil; … 2. In all other cases, the summons, pleadings or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, exceptions, case and all orders or papers in any way involving the merits and unnecessarily affecting the judgment.”

It will be noticed that “all orders or papers in any way involving the merits and necessarily affecting the judgment” constitute a part of the judgment roll. In the case at bar it is contended by the appellant that the petition and order not only affected the merits of the case, but affected the jurisdiction of the court to such an extent that after the filing of such petition, assuming the facts therein stated to be true, it could riot lawfully proceed further with the trial of the said cause. We think this is correct, and the petition and order necessarily affected the judgment, and properly constituted a part of the judgment roll. Our conclusion, therefore, is that this petition, order, and exception taken thereto, are properly before us.

Assuming that the statement made in the petition, that the wife of the trial judge owned 50 shares of the capital stock of the plaintiff bank at the time ‘the case came before the lower court for trial, is true, the question is fairly presented, was the trial judge qualified to proceed with the trial of the said cause? It is well settled law that a judge who is interested in an action is disqualified to try or determine the same. So firmly is this established that Cooley, in his work on Constitutional Limitations, lays it down as a rule that it is not competent for the legislature, even, without the aid of some constitutional provision to permit a judge who is interested to sit at the trial of the cause. Cooley, Const. Lim. (5th Ed.) 403-410; Insurance Co. v. Price, 1 Hopk. Ch. 1; Adams v. Minor, (Cal.) 53 Pac. 815; Williams v. Bank, (Tex. Civ. App.) 27 SW 147; Nalle v. City of Austin, (Tex. Sup.) 22 SW 668; Templeton v. Giddings, (Tex. Sup.) 12 SW 851; Gregory v. Railroad Co., 4 Ohio St. 675; Railway Co. v. Howard, 20 Mich. 18; Stockwell v. Board, 22 Mich. 341; Moses v. Julian, 84 Am. Dec. 114; Clark v. Lamb. 2 Allen, 396; Pearce v. Atwood, 13 Mass. 324; State v. Young, (Fla.) 12 South. 673, 19 LRA 637; Mining Co. v. Keyser, 58 Cal. 315; Freem. Judgm. § 1-16. In Insurance Co. v. Price, supra, the court says:

“It is a maxim of every code, in every country, that no man should be judge of his own cause. The learned wisdom of enlightened nations, and the unlettered ideas of ruder societies, are in full accordance upon this point; and, wherever tribunals of justice have existed, all men have agreed that a judge shall never have the power to decide where he is himself a party. The reasons which render this principle just and necessary are obvious; and whatever may be the exceptions to the general infirmities of human nature,...