Fulton v. Longshore

• Decision Date: 03 June 1908
• Citation: 46 So. 989,156 Ala. 611
• Parties: FULTON v. LONGSHORE, PROBATE JUDGE.
• Court: Alabama Supreme Court

46 So. 989

156 Ala. 611

FULTON v. LONGSHORE, PROBATE JUDGE.

Supreme Court of Alabama

June 3, 1908

Appeal from Circuit Court, Shelby County; John Pelham, Judge.

Mandamus by J. H. Fulton against A. P. Longshore, as judge of the probate court. From a judgment for defendant, plaintiff appeals. Affirmed.

McMillan & Hayne, Brown & Leeper, and S. B. & J. D. Weakley, for appellant.

Whitson & Dryer, for appellee.

TYSON C.J.

This proceeding was instituted for compelling the respondent thereto, by writ of mandamus, to certify his incompetency as judge of probate to hear and try a contested election case involving the title to the office of sheriff of his county. The contest over the right to the office is between the petitioner in this case, who is and was a Democrat, and one Norris, who is and was a Populist. It is shown by the petition, by the return thereto, and by the testimony that the respondent is, and was at the time of the election out of which the contest arose, a Populist. The grounds upon which it is sought to have him adjudged disqualified may be stated to be two: First, he had expressed the opinion, on the day of the election, to a proffered voter whose right to vote had been challenged, that he was qualified under the laws of the state to vote at the election; second, that he was an active and partisan supporter of the Populist candidate for sheriff whose right to that office he is to hear and try as judge.

It is not contended that either of these asserted grounds would work a disqualification under the statute (section 2637, Civ Code 1896); but it is insisted that they show prejudice and bias to such an extent as that the petitioner may not have a fair and impartial trial. At the common law, as now administered in England and in the United States, bias or favor, not the result of interest or relationship, is not supposed to exist. Says Mr. Blackstone: "For the law will not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice and whose authority greatly depends upon that presumption and idea." 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 Peyton's Appeal, 12 Kan. 407, the court said: "It will be admitted that at common law prejudice did not disqualify a judge." In Conn. v. Chadwick, 17 Fla. 439, this language was used: "In the time of Brocton and Fleta, a judge might be refused for good cause; but at the common law, as administered in England and the United States for centuries, judges and justices could not be challenged. There were disqualifying causes, such as interest and being of kin to the party." For a general statement of this principle, though it is, perhaps, not entirely accurate, see the text in 23 Cyc. p. 582, and 17 Am. & Eng. Ency. (2d Ed.) p. 738. In the note to these works will be found many adjudged cases, where the courts have applied this principle and held the judge not disqualified on account of bias or prejudice, where no relationship or personal interest was shown, even though there existed bitter feeling and animosity between him and one of the litigants to the cause pending in his court.

No case in this state has been cited where this court has ever held to the contrary of the common rule as announced above. In some of them it has been held--and properly so--that the disqualifying interest need not necessarily be a pecuniary one, but may be a personal one to the judge. An...