Forest Coal Co v. Doolittle

• Citation: 54 W.Va. 210,46 S.E. 238
• Court: West Virginia Supreme Court
• Decision Date: 28 November 1903
• Parties: FOREST COAL CO. et al. v. DOOLITTLE, Judge, et al.

46 S.E. 238

54 W.Va. 210

FOREST COAL CO. et al.

v.DOOLITTLE, Judge, et al.

Supreme Court of Appeals of West Virginia.

Nov. 28, 1903.

PROHIBITION—DISQUALIFICATION OF JUDGE— INTEREST — JUDGMENT — APPLICATION FOR WRIT—DISMISSAL OF CAUSE—AUTHORITY OF ATTORNEY.

1. The writ of prohibition lies to restrain a judge from proceeding in a cause in which he, is disqualified by reason of interest in the subject-matter thereof, although the court over which he presides has jurisdiction of the cause.

2. Where a judge of an inferior court, who is disqualified by reason of interest, is permitted to proceed to final judgment or decree, his interest is ground of error, for which reversal may be had in the appellate court, and renders the judgment or decree voidable; but he may be restrained, before judgment or final decree, at any stage of the case, by the writ of prohibition, and his disqualification may be made to appear upon the motion for the writ, without its having been first pleaded in the court below, passed upon adversely there, and then established in the Supreme Court on appeal or writ of error.

3. In order to disqualify, the interest of the judge must be in the subject-matter of the cause, and not merely in a legal question involved in it.

4. In determining whether such disqualification exists, the superior court will ascertain what rights and interests are involved in the case, and may be subjects of adjudication therein; and, if it be found that the judge has such interest as renders it impossible for him to adjudicate upon all the rights involved, without affecting his own, the writ will be awarded, without inquiry as to whether the parties will or will not call for an adjudication upon the particular matter as to which the disqualification exists.

5. An order dismissing the cause, or part of a cause, in which a judge is so interested as to disqualify him in respect thereto, entered or allowed by him, on motion of the parties by counsel, without special authority given to said counsel for that purpose, is voidable; and the party having the right to prosecute the cause so dismissed, in whole or in part, is entitled to an adjudication in the same cause by a qualified judge upon the question of his right to have the cause, or so much thereof as has been so dismissed, reinstated under section 11 of chapter 127 of the Code of 1899.

6. The general authority of an attorney does not include power to voluntarily enter or cause to be entered an order that perpetually bars the right of his client, such as a retraxit. Such act can be done only by the party in person, or by his attorney in pursuance of special authority conferred upon him for the purpose.

¶ 6. See Attorney and Client, vol. 5, Cent. Dig. § 168.

7. The judge of a court obtains a disqualifying interest by taking a lease, together with other persons, upon part of a tract of land against which a suit instituted by the state for the sale thereof as school land, and petitions filed by a claimant of the title of the land for the redemption thereof, are pending; and his disqualification is not removed by the dismissal, as to the part on which the lease is, of the bill and amended bills, upon the motion of counsel for the state, founded solely upon his admission that such part of the tract is not subject to sale, and the dismissal of the claimant's petition and amended petition upon his motion, by counsel, founded upon a written renunciation and disclaimer signed by his counsel.

(Syllabus by the Court.)

Action by the Forest Coal Company and others for writ of prohibition to Edward S. Doolittle, judge of the circuit court, and others. Writ awarded.

Campbell, Holt & Duncan, Brown, Jackson & Knight, Lyon, Sheppard & Goodykoontz, Hubbard & Hubbard, and Vinson & Thompson, for petitioners.

M. S. Stiles and Mollohan, McClintic & Mathews, for respondents.

POFFENBARGER, J. A writ of prohibition has been applied for by the Forest Coal Company and others to prevent the Honorable Edward S. Doolittle, judge of the circuit court of Cabell county, from sitting further in a chancery cause pending in said court, on the ground that he is disqualified as to thatcase by reason of his interest in the subject-matter thereof. This raises two questions, the first of which is whether, if such disqualification exists, the writ lies; and the other, whether the judge has any disqualifying interest.

The authorities almost uniformly hold that when a judge of an inferior court is recused before judgment in a case in which he has an interest, such as disqualifies him, and a prohibition is applied for to restrain him from further sitting in the cause, it will be granted, if, upon the application therefor, it appears that he is disqualified. "Prohibition is the proper remedy to prevent action by a judge who is disqualified by interest or otherwise." Works on Courts and their Jurisdiction, 638. "A writ of prohibition will lie to restrain a judge from proceeding in an action in which he is disqualified by reason of interest, although the court over which he presides may have jurisdiction of the cause." 23 Am. & Eng. Enc. Law (2d Ed.) 223. The following cases, fully supporting the text, are cited: Gravel Mining Co. v. Keyser, 5S Cal. 315; Gravel Mining Co. v. Keyser, 58 Cal. 328; Milton Mining Co. v. Keyser, 58 Cal. 328; South Feather Co. v. Keyser, 58 Cal. 329; Blue Tent Co. v. Keyser, 58 Cal. 329; People v. District Court, 26 Colo. 226, 56 Pac. 1115; State v. Wear, 129 Mo. 619, 31 S. W. 608; State v. Board of Education, 19 Wash. 8, 52 Pac. 317, 40 L. R. A. 317, 67 Am. St Rep. 706.

These cases were decided in states in which statutes had been passed prohibiting judges from sitting in causes in which they are interested. Where such statutes exist, judgments rendered by interested judges are generally held to be void. Where the disqualification is not statutory, but rests upon the common law, such judgments are voidable only. Findley v. Smith, 42 W. Va. 299, 26 S. E. 370; Black on Judgments, §§ 174, 266; Cooley's Const. Lim. 509; State v. Castle-berry, 23 Ala. 85; Heydenfeldt v. Towns, 27 Ala. 423; Dimes v. Canal Co., 3 H. L. 759.

It was strongly insisted for the respondents upon the argument that as in this state there is no statute prohibiting a judge from sitting in a case in which he is interested, and a judgment rendered in such case is voidable only, there is no want of jurisdiction, in consequence of which prohibition does not lie. There is jurisdiction in the court. The want of power is in the judge only. It is personal to him. His interest is a collateral matter which arises in the cause over which the court has full jurisdiction, and renders the judge powerless to further act. This argument is answered by the judges of the English courts in their reply to questions propounded by the House of Lords in Dimes v. Canal Co., 3 H. L. 759, 784, in which they said a judgment or decree rendered by an interested judge or chancellor was voidable only, for reasons of public policy, but that the writ of prohibition did lie nevertheless, to the judge of an inferior court, to prevent him from sitting in the case. As to the character of the judgment and reason for holding it not void, they said: "It would create great confusion and inconvenience if it was. The objection might be one of which the parties acting under these orders might be totally ignorant till the moment of the trial of an action of trespass for the act done." As to the use of the writ of prohibition in such cases, they said: "If this had been a proceeding in an inferior court—one to which a prohibition might go from a court in Westminster Hall—such a prohibition would be granted, pending the proceedings, upon an allegation that the presiding judge" of the court was interested in the suit. * * * If no prohibition should be applied for, * * * the proper mode of taking the objection to the interest of the judge would be, in courts of common law, by bringing a writ of error, for error in fact and assigning that interest as cause of error. The former course was stated to be proper in the case of Brookes v. Earl of Rivers, it being suggested that the Earl of Derby, who was chamberlain of Chester, had an interest in the suit; and the court held that, where the judge had an interest, neither he nor his deputy can determine a cause or sit in court, and, if he does, a prohibition lies." "A suit was surmised to be before the Lord President of the Marches, for an office, between the grantee of the Lord President and a stranger, wherein the only question would be whether the grant of that office belonged to the Lord President And because in this case he would be as it were both judge and party, a prohibition was granted." 8 Bac. Abr. 231.

To the authorities just cited, it might be objected that the expressions of opinion as to the applicability of the writ of prohibition in such case are obiter dicta, for the reason that, in the case quoted from, it was concededly not applicable, because the decisions then under consideration had been made by the Lord Chancellor and the Vice Chancellor, against whom the writ cannot go because the court over which they preside is of equal dignity with the superior courts of law. In Brookes v. Earl of Rivers, Hardress, 503, the writ was refused because it was found that the Earl of Derby was not disqualified; and it was not absolutely necessary to say the writ would have been awarded, had it been otherwise. However, these opinions were delivered by judges of the highest courts of that country from which we have inherited the common law, and they may well be supposed to have been thoroughly familiar with its principles and the practice under it A quotation from Bacon's Abridgment has been given, in which a precedent is cited. In Gravel Mining Co. v. Keyser, 58 Cal. 315, 326, Sharpstein, J., does not base authority to grant the writ upon the character of the judgment He said: "And itmay be—although the decisions are...