Ledford v. Lewis, Judge

• Decision Date: 18 January 1929
• Citation: 227 Ky. 396
• Parties: Ledford v. Lewis, Judge.
• Court: United States State Supreme Court — District of Kentucky

227 Ky. 396

Ledford v. Lewis, Judge.

Court of Appeals of Kentucky.

Decided January 18, 1929.

Mandamus. — Court of Appeals will not assume jurisdiction to grant relief by mandamus to require trial judge to vacate bench and certify disqualification to preside at particular trial, since such matter was within his jurisdiction and could be considered on final appeal; power of Court of Appeals under Constitution, sec. 110, in exercising supervisory control over inferior courts by original writ being restricted to cases where inferior court lacks jurisdiction or is proceeding out of its jurisdiction or where irreparable injury will result.

Petition for Writ of Mandamus.

A.T.W. MANNING for plaintiff.

WILLIAM LEWIS pro se.

OPINION OF THE COURT BY CHIEF JUSTICE McCANDLESS.

Dismissing petition for mandamus.

Petitioner, Albert S. Ledford, seeks a mandamus requiring the Honorable William Lewis, judge of the Twenty-Seventh judicial district, to vacate the bench and certify his disqualification to preside upon the trial of the action of Albert S. Ledford, Plaintiff, v. Millard Hubbard, Defendant, now pending in the Clay circuit court, to the end that a special judge may be appointed to preside therein.

It is substantially alleged in the petition that plaintiff and Millard Hubbard were rival candidates for the office of sheriff of Clay county, at the regular November election, 1925. Hubbard was awarded the certificate of election. Plaintiff filed a contest for the office and judgment was rendered in the circuit court in favor of Hubbard, and plaintiff appealed to the Court of Appeals, which reversed the judgment of the circuit court and awarded the office to plaintiff, whereupon he assumed the duties of the office. Notwithstanding these proceedings, Hubbard qualified as sheriff on the first Monday in January, 1923, and performed the duties of such office during the pendency of the legal proceedings. After his qualification, plaintiff instituted an action in the Clay circuit court against Hubbard to recover the fees and emoluments of the office which had been collected by Hubbard. He further states that in all of the contest proceedings the defendant represented Hubbard as attorney and chief counsel; that the contest was one of the hardest fought cases tried in Clay county, and created a great deal of public feeling and sentiment; that at the November, 1927, election defendant was elected and qualified as judge of the Twenty-Seventh judicial district on the first Monday in January, 1928; that, at the first term of court after his qualification, plaintiff filed an affidavit in the second action of Hubbard v. Ledford, setting forth the above facts and asking the defendant to vacate the bench in that action and to certify his disqualification for the purpose of the appointment of a special judge to hear and determine that case. The affidavit is made an exhibit and conforms to the allegations of the pleading, concluding:

"Affiant further says that the reason above stated is the only reason for asking the trial judge to vacate the bench in the trial of this action, and further says that any person who having been actively engaged in the preparation and trial of such a contest election case could not give the adverse party to said action the same fair and impartial trial for the emoluments and...