Hargis v. Marcum

• Decision Date: 28 June 1907
• Parties: HARGIS ET AL. v. MARCUM ET AL.
• Court: Kentucky Court of Appeals

103 S.W. 346

HARGIS ET AL. v. MARCUM ET AL.

Court of Appeals of Kentucky.

June 28, 1907

Nunn and Lassing, JJ., dissenting.

Appeal from Circuit Court, Clark County.

"Not to be officially reported."

Action by Abrelia Marcum and others against James Hargis and others. From a judgment for plaintiffs against defendants James Hargis and another, they appeal. Affirmed.

McQuown & Brown, Hazelrigg & Hazelrigg, Jno. M. Stevenson, J. Smith Hays, and J. B. Hanna, for appellants.

Byrd &amp Jouett and C.J. Bronston, for appellees.

HOBSON J.

This action was brought by Abrelia Marcum and her infant children to recover for the death of her husband, James Marcum against James Hargis, Alex Hargis, B. F. French, and Edward Callahan under section 4, Ky. St. 1903, on the ground that they had caused him to be shot and killed. The defendants filed an answer, denying the allegations of the petition. The case was tried before a jury, who found for the defendants Alex Hargis and B. F. French, but found for the plaintiffs against James Hargis and Edward Callahan in the sum of $8,000. Judgment was entered on the verdict, and James Hargis and Edward Callahan appeal.

The chief ground relied on for reversal is the refusal of the regular circuit judge to vacate the bench. The affidavit filed by the defendants is as follows: "The affiants and defendants in the above-entitled action, James Hargis, Alex Hargis, Ed Callahan, and B. F. French, say that the Honorable J. M. Benton, the regular presiding judge of the Clark circuit court, will not afford these defendants a fair and impartial trial of this case, and will not impartially decide the application for change of venue made therein by affiants and defendants now pending and undertermined; that the said Judge J. M. Benton is personally hostile to defendant James Hargis, and has been so for the past six years or more, and as these defendants aver, cannot, by reason of such existence of hostility towards James Hargis, afford the said James Hargis and these defendants a fair trial to do defendants or their cause justice upon the trial of this action or their said application for change of venue or of the motion and demurrers pending and undetermined therein. This hostility between the said judge and the defendant James Hargis grew out of a business transaction in the year 1897 between the said judge and the defendant James Hargis, the said James Hargis then having remarked that the said judge had treated defendant and James Hargis badly (at the time stating facts with reference thereto), and he, Hargis, did not want to have anything more to do with said Judge Benton, which remarks were communicated to said judge, and since said time, and for that reason, and on that account, the said judge and defendant, James Hargis, have had no business transactions with each other, and, though meeting often, they have avoided each other in social and business matters, have opposed each other in political matters, though members of the same political party, all growing out of the said previously formed antagonism between them, and have not been on friendly or social terms with each other since, though before said date they had been friends in business and social and political affairs. Affiant further states that in the year 1900 the said J. M. Benton was an actual or prospective candidate for judge of the Court of Appeals of this state in the Seventh appellate district, and in the year 1900, at a Democratic convention for the Tenth congressional district within the Seventh appellate district, held at Paintsville, Kentucky, and while the said J. M. Benton was a prospective candidate for judge of the Court of Appeals, that defendant James Hargis and the said J. M. Benton attended said convention; that James Hargis was the leader of the Breathitt county delegation in said convention, and the said J. M. Benton was the recognized leader of the Clark county delegation therein; that said J. M. Benton was the supporter of one of the contending candidates before the said convention, and the said James Hargis and his delegation were supporters of another candidate who was nominated at said convention, and that during the deliberations of said convention the said J. M. Benton was repeatedly interrupted while attempting to address the convention, and after the adjournment of said convention the said J. M. Benton openly and publicly charged that his mistreatment at said convention was at the instigation of the defendant James Hargis and the Breathitt county delegation, and said, in substance, 'that he would rather have the friendship of one gentleman than twenty toughs,' meaning the defendant James Hargis and the delegates from Breathitt county; and, further, defendant James Hargis opposed the said judge as actual or prospective candidate for the office of judge of the Court of Appeals, and announced such opposition to be on the sole ground of the existing and continued state of hostile feeling between the said judge and this defendant James Hargis, and this fact was communicated and made known to the said judge." In overruling the motion, the circuit court entered this order: "Being of the opinion that the facts stated in the affidavit filed herein would not be sufficient, if true, to make it improper for the regular judge of this court to try the motion for a change of venue, I decline to vacate the bench. I desire to state, however, that if the statements contained in said affidavits were true, or if I believed that the defendants really believed them to be true, I would vacate the bench, notwithstanding my opinion that the affidavit is insufficient. If I were conscious of the existence of any feeling, facts, or conditions that would cause me to be inclined to favor one side over the other in this case, or that would cause me to desire to see one side succeed over the other, I would, of my own motion, decline to try the case. To this action of the regular judge the defendants object and except."

The rule as to the sufficiency of an affidavit swearing the regular judge off the bench was thus laid down in German Insurance Company v. Landram, 88 Ky. 440, 11 S.W. 369 "The fact or facts upon which the belief that the judge will not give the litigant a fair trial should and must be stated in the affidavit; and they must be of such a character as shall prevent the judge from properly presiding in the case. We do not mean to say the statement of the ground for belief must establish, if true, that the judge is a corrupt official, but we do mean to adjudge that such causes, and those of a like character, as have been noticed, are not sufficient; and there must be some fact stated, such as personal hostility of such a character, if that ground is relied on, as would prevent an official of personal integrity from presiding in the case, and of the sufficiency of the affidavit the trial judge must determine, and the question, if improperly decided, can be raised in this court, as in other cases, if an appeal is taken." In Schmidt v. Mitchell, 101 Ky. 592, 41 S.W. 934, 72 Am. St. Rep. 427, where the affidavit was not unlike that above quoted, the court said: "A careful examination of the affidavit filed in this case shows that the averments are based almost entirely upon hearsay, and that it is not drawn in conformity with the rule laid down in the Landram Case, supra. We do not feel authorized to hold that, in deciding this affidavit to be insufficient, there was an abuse of judicial discretion by the trial court." In Sparks v. Colson, 109 Ky. 720; 60 S.W. 543, we again said: "In Insurance Company v. Landram, 88 Ky. 433, 11 S.W. 367, 592, this court held that, to require the judge to vacate the bench and give place to a special judge to try the case, the affidavit must state such facts as would prevent the judge from properly presiding in the case--such as personal hostility,...