Moulton v. Byrd

• Decision Date: 21 January 1932
• Docket Number: 4 Div. 615.
• Citation: 224 Ala. 403,140 So. 384
• Parties: MOULTON v. BYRD, JUSTICE OF THE PEACE.
• Court: Alabama Supreme Court

140 So. 384

224 Ala. 403

MOULTON v. BYRD, JUSTICE OF THE PEACE.

4 Div. 615.

Supreme Court of Alabama

January 21, 1932

Rehearing Denied March 31, 1932.

Appeal from Circuit Court, Covington County; Emmet S. Thigpen Judge.

Petition of R. R. Moulton for mandamus and prohibition to Clarence Byrd, Justice of the Peace for Precinct 3, Covington County Ala., to require respondent to recuse himself in the cause of M. W. Godwin v. R. R. Moulton, pending before him. From a judgment sustaining a demurrer to the petition and dismissing it, petitioner appeals.

Affirmed.

A Whaley, of Andalusia, for appellant.

B. W Simmons, of Opp, for appellee.

THOMAS J.

The petition was for mandamus and prohibition; demurrers were sustained thereto, and, the petitioner failing to amend, the petition was dismissed at the cost of the petitioner.

The mandamus sought to have a justice of the peace recuse himself by reason of the fact that he is alleged to have acted as attorney for the plaintiff by preparing the complaint and the necessary affidavit for attachment for rent, and notice to vacate, for the plaintiff in attachment against petitioner, defendant in the justice court, and that respondent was dependent for his compensation upon the lawful fees made and provided in such case.

The petition further avers that such justice would proceed to hear the cause, and thus deny to petitioner due process of law (sections 6 and 13, Constitution; section 8570, Code), unless the writ of prohibition issued forthwith, and that upon final hearing he be compelled by the writ of mandamus to recuse and declare his disqualification in said suit.

The trial judge granted an ancillary petition causing the justice to desist from trial of the cause pending final disposition of the questions presented.

The question presented is of ancient origin (Lord Coke in Bonham's Case, 8 Coke, 113-a 77, 113-b 77, English Reprint, 638, 646), and has been much discussed by the courts of English speaking people (33 C.J. 988; 15 R. C. L. 526 et seq.; State ex rel. Barnard v. Board of Education of City of Seattle, 19 Wash. 8, 52 P. 317, 40 L. R. A. 317, 67 Am. St. Rep. 706; 50 A. L. R. 1256, et seq.; 33 A. L. R. 1322, et seq.) and by this court (Ex parte State Bar Association, 92 Ala. 113, 8 So. 768; 12 L. R. A. 134; Burdine v. Grand Lodge of Alabama, 37 Ala. 478; Rose v. Magro, 220 Ala. 120, 124 So. 296; Tucker v. Houston, 216 Ala. 43, 112 So. 360; City of Birmingham v. Lane, 210 Ala. 252, 97 So. 728; Woodmen of the World v. Alford, 206 Ala. 18, 21, 89 So. 528; Webb v. Town of Eutaw, 9 Ala. App. 474, 63 So. 687, and authorities; Code 1928, § 8570).

It is only a direct interest that disqualifies. Woodmen of the World v. Alford, supra; Ex parte State Bar Ass'n, supra. The effect of our cases in classification of the causes for disqualification of a judge are: (1) Those affecting his individual rights; (2) his direct pecuniary interest; and (3) any interest the probable and natural tendency of which is to create bias in the mind of the judge for or against a party in interest to the suit. Woodmen of the World v. Alford, 206 Ala. 18, 22, 89 So. 528; Crook, Judge, etc. v. Newborg & Son, 124 Ala. 479, 481, 27 So. 432, 82 Am. St. Rep. 190; Tucker v. Houston, supra; Ex parte State Bar Ass'n, 92 Ala. 113, 119, 8 So. 768; Burdine v. Grand Lodge of Alabama, 37 Ala. 478.

In Ex parte State Bar Association, 92 Ala. 113, 117, 118, 119, 8 So. 768, 769, 12 L. R. A. 134, the observation is:

"The sole ground of incompetency disclosed by the return in this case is the membership of Judge Head in the plaintiff corporation, the Alabama State Bar Association, and his consequent interest in the suit, resulting from the liability of that corporation for the costs of the proceedings should its determination be adverse to the association. This corporation is not a commercial or financial concern. It is not capitalized; its members are not stockholders. Its purposes are social, ethical, and public, and not pecuniary or private. Its scheme involves no element of gain or loss pecuniary to its membership. It is supported by fixed annual dues, exacted from its members, and these would neither be increased nor diminished by any possible result of this litigation. It has authority to acquire and hold property within certain limits of value. Whether it has acquired any property does not appear from the return; and if the respondent seeks any advantage by reason of its ownership of property, his interest in which as a member would be affected by any judgment that might be rendered in this cause, it was upon him to return the fact. But conceding that we must assume that the association did own property to the limits of its power in that respect, and conceding further, that the interest of members in that property was such that, upon the dissolution of the corporation, each member would be entitled to a distributive share of it,-a proposition unsupported by authority,-still this interest would be entirely too remote and speculative to disqualify the member from sitting as judge or juror in a case to which the corporation is a party. The interest which will disqualify must be a pecuniary one, or one affecting the individual rights of the judge. The fact that dues which he pays to the association may have to be appropriated to the satisfaction of a judgment for costs cannot constitute such interest, since the dues are paid for that purpose, among others, whether in contemplation of such judgment or not, and the amount of his liability in that respect is not affected by the rendition of a judgment for costs against the association. Moreover, 'the liability of pecuniary gain or relief to the judge must occur upon the event of the suit, not result remotely, in the future, from the general operation of law upon the status fixed by the decision.' 12 Amer. & Eng. Enc. Law, p. 45 et seq. The diminution of a member's distributive share in the corporation property depending upon a dissolution which may never occur, or never during his life or membership, or relief from such result, is certainly entirely too remote to be considered in any sense as occurring 'upon the event of the suit.' It is, on the contrary, if possible at all, a result of the remote future, 'from the general operation of law on the status fixed by the decision.' That the interest relied on to disqualify must be a pecuniary one, and be affected by the event of the suit, and not remotely, is fully illustrated in the adjudged cases. ***

"And where the salary of a judge

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