German Ins. Co. v. Landram
| Decision Date | 11 May 1889 |
| Citation | 11 S.W. 592,88 Ky. 433 |
| Parties | GERMAN INS. CO. v. LANDRAM. |
| Court | Kentucky Court of Appeals |
"To be officially reported."
On rehearing. For former opinion, in which the facts and the statute construed are fully set out, see ante, 367.
Collins & Fenley and D. S. Clay, for appellant.
De Jarnette & Dickerson, for appellee.
It is argued in a petition for a rehearing that the constant abuse of this statutory privilege is no reason for this court invading the province of the legislature by placing such a construction on the language of the statute as requires the litigant to specify the grounds upon which his affidavit is based. While the abuse of a law will not justify a resort to judicial legislation to remedy the evil, it is plain that no such meaning was intended to be given this statute as enables a litigant by an ex.parte affidavit to deprive his adversary of his right to have his case tried by the regular judge, and at the same time render that judge powerless to inquire as to the cause of the attack upon his official integrity. It is a virtual impeachment of the judge in the particular case without cause. The legislature could not well designate each and every cause for which the judge should vacate the bench, and therefore the comprehensive language is used to the effect that, where the judge cannot afford the litigant a fair and impartial trial, he shall vacate the bench. This does not dispense with the necessity for stating the facts upon which the affidavit is based. To construe the statute as counsel would have this court construe it would be similar to permitting a recovery of money or property by one from the other without alleging a cause of action that no court would sanction, although authorized by legislation. While the general outlines of a cause of action may be given still such averments must be made as will authorize the recovery, and so of the judge who has been called on to try the case. While the legislature has said that, if an affidavit is made by the litigant that the judge will not afford him a fair trial, he shall not preside, the facts upon which this general averment is made must appear, and they must be such as bring the case within the legislative meaning. In the Case of Turner, 2 Metc. (Ky.) 625, it was distinctly held that the grounds should be specified. On the other branch of the case we see no reason for a reversal. The appellee may have received more...
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