McConnell v. Goodwin

• Decision Date: 07 November 1914
• Docket Number: 718
• Citation: 66 So. 675,189 Ala. 390
• Parties: McCONNELL v. GOODWIN.
• Court: Alabama Supreme Court

66 So. 675

189 Ala. 390

McCONNELL v. GOODWIN.

No. 718

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Fayette County; Bernard Harwood, Judge.

Petition by D.O. McConnell against E.P. Goodwin, as Judge of Probate to recuse himself in a proceeding to establish a public road. From a judgment denying the petition, petitioner appeals. Affirmed.

The petition showed that a proceeding was pending in the probate court of Fayette county, filed by the road supervisor in the name of the county, for the establishment of a public road. The petition charged that appellee, as probate judge of Fayette county, was not competent to sit as judge of said proceedings, because, first, he was a member of the road commission, and shared in the initiation of that proceeding and, second, because several of his first cousins were interested in the opening of the road, and had made contributions thereto. The prayer of the petition was for "the appropriate writ of mandamus, or other appropriate writ, requiring and compelling Hon. E.P. Goodwin, judge of probate, to certify his disqualification and incompetency under the statute and common law of the state of Alabama, to try, hear, and determine the said proceedings, and prohibiting him from proceeding further with the consideration thereof, unless otherwise ordered by your honorable court." The petition was addressed to the judge of the Sixth judicial circuit, and was presented to the judge of the law and equity court of Walker county in vacation, who issued a fiat to the circuit clerk of Fayette county, directing him to issue a writ of mandamus or other remedial writ, returnable to the circuit court of Fayette county, Ala., as prayed in said petition. Pursuant thereto the said circuit clerk issued a peremptory writ demanding the respondent, Goodwin, to certify the fact of his incompetency and prohibiting him from further proceeding in such cause, unless otherwise ordered by the circuit court of Fayette county. On motion of respondent, made in the circuit court, the writ was quashed, the fiat vacated, and the petition dismissed, to which petitioner severally excepted.

Gunn & Powell, of Jasper, and J.M. Holliman, of Fayette, for appellant.

Ray & Cooner, of Jasper, and McNeil & Monroe, of Fayette, for appellee.

SOMERVILLE J.

The writ of mandamus and incidental prohibition, being peremptory in character and issued in vacation, was void, and was properly quashed. Ex parte Ray, 45 Ala. 15; Ex parte Boothe, 64 Ala. 312-319. The fiat under which the writ was issued was void for the same reason, and was bad, also, in that it left the selection of the "appropriate writ" to the discretion of the circuit clerk, a judicial authority which could not be thus delegated.

It remains only to determine whether the court properly refused to issue a new writ and properly dismissed the petition. Where a judge is incompetent, whether on statutory or common-law grounds, to try a cause pending before him, mandamus is the proper remedy to compel him to certify his incompetency, as a preliminary to the selection of a qualified judge in his stead. State ex rel. Smith v. Pitts, 139 Ala. 152, 36 So. 20; Bryce v. Burke, 172 Ala. 219, 55 So. 635.

We are of the opinion that a probate judge is not disqualified for the trial of a cause in which the county, of which he is judge, is a party litigant. As said in Ex parte State Bar Ass'n, 92 Ala. 113, 118, 8 So. 768, 770, "the interest which will disqualify must be a pecuniary one, or one affecting the individual rights of the judge." The statute--...