German Ins. Co. v. Landram

• Decision Date: 28 March 1889
• Citation: 88 Ky. 433,11 S.W. 367
• Parties: GERMAN INS. Co. v. LANDRAM.
• Court: Kentucky Court of Appeals

11 S.W. 367

88 Ky. 433

GERMAN INS. Co. v. LANDRAM.

Court of Appeals of Kentucky.

March 28, 1889

Appeal from circuit court, Grant county; WARREN MONTFORD, Judge.

Action on a fire insurance policy by G. M. Landram against the German Insurance Company. Defendant appeals.

Collins & Fenley and D. S. Clay, for appellant.

De Jarnette & Dickerson, for appellee.

PRYOR J.

The principal and only question necessary to be considered in this case arises from the refusal of the regular judge below to vacate the bench on the filing by the agent of the appellant with the clerk of the court. as provided by section 1, art. 7, c. 28, Gen. St. Ky. to the effect that "the judge would not afford the appellant a fair and impartial trial." When the case was called the appellant, the German Insurance Company, of Freeport, Ill., defendant in the action, moved through its counsel for a continuance of the case, supported by the affidavit of its agent. The motion was overruled, and thereupon an amended affidavit was filed, and the motion was renewed, and the motion again overruled. At this stage of the proceeding the counsel filed the affidavit of the agent, asking that the case be tried by a special judge, and the court, disregarding the affidavit, proceeded to try the case, resulting in a verdict and judgment against the appellant. The constitutionality of this statute requiring the judge to vacate the bench, was maintained and ably argued on the hearing, and if constitutional it is urged the judgment in this case should be reversed, in order that the appellant may have a retrial before some other judge than the regularly elected judge of the district. The constant abuse of this statutory privilege in almost every circuit court district in the state has directed the attention of the courts and the profession to this important question, and while the purpose of the law is to place the trial judge beyond the temptation to oppress those who are compelled to resort to the courts for the protection of person and property, and to enable the litigant to prevent a corrupt or partial judge from passing judgment on his case, it must be conceded by every one at all familiar with the administration of the law by the circuit judges of the state that this statute, with the construction now given it, operates in its practical effect to enable the shrewd and reckless litigant to avoid the trial of his case by the regular judge without cause, and to deprive the honest litigant of what is his constitutional right. He takes advantage of this statute, and acquits his conscience, in making the affidavit, on the ground that the judge, in refusing a continuance, sustaining a demurrer to his complaint or defense, or in excluding testimony offered, or on account of other rulings in his case, or in other cases. whether erroneous or proper, has induced the belief in his mind that he cannot have a fair and impartial trial. The personal and judicial integrity of the judge is questioned only in this way when every man acquainted with the judicial history of the state will testify, in looking to the present or the past, that no public officials are more entitled to the approbation of their fellow-men for the faithful and honest discharge of their duties than the judges of the various circuit court districts; and, whether elevated to these positions by appointment or the popular vote, it cannot be truthfully said that they are influenced in their judicial action by local influences or party prejudice. Those who make these affidavits (and they are becoming almost as numerous in contested cases as motions for a continuance) assign no cause for their belief that justice will be denied them, yet the trial judge, with no charge made against him, is often unseated by a litigant he has never known, or by those with whom he has never had a business transaction, with no means of ascertaining the facts upon which the belief of the litigant is based, and, however corrupt the oath may be there is no means of punishing the guilty party, because his belief is made the law. In fact, that branch of the judiciary upon whose intelligence and integrity we depend more for the protection of person and property than any other, and whose intercourse and influence with the people in the administration of the law mould public sentiment in sustaining every moral as well as legal principle essential to social existence, is met at every term of the court with an affidavit that he is a corrupt or partial judge, and this affidavit spread upon the records. It not only lessens the respect we should have for the judge and the law he administers, but tends directly to destroy that pure public sentiment that demands its vigorous enforcement. The...