Mabel C. Leonard v. Superior Judge Julius A. Willcox

• Decision Date: 07 July 1928
• Citation: 142 A. 762,101 Vt. 195
• Parties: MABEL C. LEONARD v. SUPERIOR JUDGE JULIUS A. WILLCOX ET AL
• Court: Vermont Supreme Court

142 A. 762

101 Vt. 195

MABEL C. LEONARD v. SUPERIOR JUDGE JULIUS A. WILLCOX ET AL

Supreme Court of Vermont

July 7, 1928

January Term, 1928.

Prohibition---Question of Disqualification of Judge by Reason of Bias or Prejudice---Manner of Raising Question---Waiver---Motion To Dismiss for Lack of Jurisdiction---Certiorari---Nature and Functions of Writ of Prohibition---Prohibition Will Not Issue Unless Other Adequate Relief Unavailable---Effect of Existence of Right of Review---When Writ of Prohibition Is Matter of Right---Prohibition as Remedy To Test Question Whether Judge Is Qualified by Interest or Prejudice---Courts---Jurisdiction in Vacation---Jurisdiction of Superior Judge under G. L. 3597, 3599---Meaning of "Session" as Used in G. L. 3599---Limit of Jurisdiction Conferred by Entry "With Court"---Concurrence of Majority of Court Necessary To Make Judgment Effective---Divorce---Necessity of Notice in Proceedings under G. L. 3597, 3599, Although Not Specifically Provided by Statute---Sufficiency of Service of Notice---Effect on Jurisdiction of Court of Order Requiring Production of Minor Child of Divorced Parents at Hearing as to Its Care and Custody---Effect of Failure of Divorced Wife To Produce Minor Child at Hearing on Application for Writ of Prohibition Questioning Judge's Jurisdiction---Bias or Prejudice Disqualifying Judge---Sufficiency of Showing as to Bias.

1. Courtesy to the judge requires objection claiming disqualification by reason of bias to be brought to his attention before recourse is had to a petition for writ of prohibition.

2. In absence of statutory provision, objection claiming disqualification of judge by reason of bias must be made promptly after it becomes known to objector, or it is waived.

3. Objection in lower court raising question of disqualification of judge by reason of bias is not a jurisdictional fact which must appear before petition for writ of prohibition can be entertained, and in proper cases higher court will proceed without such objection having been made.

4. Question of disqualification of judge by reason of bias, held sufficiently raised by written motion to dismiss setting forth grounds relied upon.

5. Written motion to dismiss proceeding seeking modification of order as to care and custody of minor child, previously made in decree of divorce, because unauthorized by statute and because of insufficiency of service, held clearly appropriate, since questions were raised by record.

6. Certiorari, being a writ of review and necessarily founded upon final determination of case by inferior tribunal, is not proper remedy to test right of judge to hear proceeding for modification of order as to care and custody of minor child previously made in divorce decree.

7. A "writ of prohibition" is an extraordinary judicial writ issued out of a court of supreme jurisdiction, and technically denominated as such, directed to judge and parties of a suit in any inferior court, commanding them to cease from prosecution thereof, upon suggestion that either cause originally, or some collateral matter arising therein does not belong to that jurisdiction, but to the cognizance of some other court.

8. Writ of prohibition does not lie to prevent errors or irregularities in proceedings if matter is within jurisdicton of tribunal, but its function is to prevent unlawful assumption of jurisdiction, either of entire subject-matter or of something collateral or incidental thereto contrary to common law, or statutory prohibitions, and when decision of inferior tribunal so operates writ may be had.

9. Writ of prohibition never issues, if there is other adequate relief, but such other relief must be adequate, and not merely technically appropriate.

10. The existence of right of review, by exception or otherwise, will prevent issuance of writ of prohibition.

11. Although issuance of writ of prohibition may be discretionary under certain circumstances, party who has objected to jurisdiction at outset, and has no other remedy, is entitled to writ of prohibition as a matter of right, when it appears that court whose action is sought to be prohibited has clearly no jurisdiction of case originally, or of some collateral matter arising therein.

12. Writ of prohibition held proper remedy to test question of claimed disqualification of judge over case, by reason of interest or prejudice.

13. Authority and jurisdiction of a county court, or of a judge thereof, in vacation, over judgments and matters upon which they are based, are only such as statute confers.

14. Where petition was brought under G. L. 3597, for modification of previously granted decree in divorce proceeding so far as it related to care and custody of a minor child of parties and provisions of G. L. 3599 with respect to summons service, and filing had been complied with, Held that petition for modification was pending within meaning of statute, and that superior judge had jurisdiction of such application in vacation during such pendency.

15. Term "session" as used in G. L. 3599, respecting time of petition for modification of order concerning care custody, and maintenance of minor children of divorced parties, held to refer to a stated term of county court.

16. Jurisdiction of judges of county court as to case left "with court," continues only during vacation, and upon opening of succeeding term entry ceases to be effective.

17. Judgment of county court in a case entered "with court" must be with concurrence of a majority of court, and findings and order of one member of court without concurrence of other member participating in trial are of no force and effect.

18. While G. L. 3597, 3599, relating to application for temporary order concerning care and custody of minor children during pendency of petition, made after decree, to annul, vary or modify previous order relating thereto, does not specifically provide for notice in absence of express requirement to contrary, statute will not be interpreted to authorize judicial proceedings without notice to parties to be affected thereby, since such would not be due process of law, and, in absence of such plain provision, common law requires such notice shall be given.

19. Service of notice of petition under G. L. 3597, 3599, to modify previous order relating to care and custody of minor child, made in accordance with an order setting date of hearing and providing manner of notice, by delivery of copy of such petition and order for hearing by an indifferent person named therein to other party outside State, held sufficient under circumstances to give court jurisdiction.

20. That such order also commanded production of minor child of divorced parents at hearing on petition to modify previous order relating to its care and custody, held not to divest superior judge of jurisdiction, since welfare of child was controlling consideration, and, under circumstances, he was in legal contemplation, continuously within control of court, or superior judge, upon proper application being made for an order respecting his custody.

21. Failure of divorced wife to produce child at hearing before superior judge, in accordance with order made by such judge, on petition to modify previous order relating to his care and custody, held not to require that writ of prohibition sought against such judge be denied, since it was perfectly proper for divorced wife to appear specially by attorney and urge want of judge's jurisdiction, and her standing before Supreme Court is not impaired thereby.

22. Under Constitution of Vermont, Ch. II, 28, bias or prejudice on part of judge, existing to such an extent that an impartial hearing cannot be had, will disqualify him, and if objection is properly made, result in his recusation; the Constitution in such respect being self-executing and of full effect whether or not Legislature has acted with reference to subject-matter, and intended not merely for parties to suit, but for general interests of justice by preserving purity and impartiality of courts, and respect and confidence of people for their decisions.

23. Bias or prejudice of judge sufficient to disqualify him, under Constitution of Vermont, Ch. II, 28, must be against party and not against the particular delinquency charged.

24. Mere showing of previous adverse rulings, no matter how erroneous or numerous, or mere showing a judge's expression of opinion, uttered in what he conceived to be the discharge of his judicial duty, based upon evidence produced before him, is insufficient to disqualify judge on ground of bias or prejudice.

25. Judge feeling and expressing doubt that any evidence, covering matters which had transpired since former hearing of same issue, purport of which he does not know, but which presumably is material and relevant, will change his conviction then reached, held to have admitted his bias, and to have thereby disqualified himself from proceeding further in hearing.

PETITION for writ of prohibition preferred to Supreme Court for Bennington County, by Mabel C. Leonard against Superior Judge Julius A. Willcox and others. Heard on pleadings and testimony taken before a commissioner appointed by court for that purpose. The opinion states the facts. Writ granted.

It is ordered that a writ of prohibition issue, in the name of the State, signed by the clerk, directed to the respondents, prohibiting them from proceeding further in the application set forth in the petition for said writ, without costs.

Edward L. Bates and Warren R. Austin for petitioner.

Walter S. Fenton for Superior Judge Willcox.

Collins M. Graves, Frank C. Archibald, and George L. Hunt, pro se, and for John N. Leonard.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and CHASE, JJ.

OPINION

MOULTON

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