De Moville v. Merchants & Farmers Bank of Greene County

• Decision Date: 19 January 1939
• Docket Number: 2 Div. 122.
• Citation: 186 So. 704,237 Ala. 347
• Parties: DE MOVILLE ET AL. v MERCHANTS & FARMERS BANK OF GREENE COUNTY.
• Court: Alabama Supreme Court

186 So. 704

237 Ala. 347

DE MOVILLE ET AL. v MERCHANTS & FARMERS BANK OF GREENE COUNTY.

2 Div. 122.

Supreme Court of Alabama

January 19, 1939

Rehearing Denied Feb. 21, 1939.

Appeal from Circuit Court, Greene County; Benj. F. Elmore, Judge.

Bill for redemption from mortgage foreclosure, for accounting etc., by J. F. De Moville (by guardian ad litem and next friend) against Merchants & Farmers Bank of Greene County Alabama. From a decree fixing amount necessary to redeem complainant appeals and respondent files cross-appeal.

Affirmed in part, and in part reversed, rendered, and remanded.

150k393 Appointment, Qualification, and Tenure.

Chancery practice rule which disqualifies register when he is related to parties within fourth degree of consanguinity or affinity is mandatory and does not appeal to the discretion of the court. Rule of Chancery Practice No. 6.

J. F. Aldridge, of Eutaw, and Cabaniss & Johnston and K. E. Cooper, all of Birmingham, for appellant.

McQueen, McQueen & McQueen, of Tuscaloosa, E. F. Hildreth, of Eutaw, and Knox, Acker, Sterne & Liles, of Anniston, for appellee.

FOSTER Justice.

This is a second appeal in the case. See 233 Ala. 204, 170 So. 756, for the facts as presented on that appeal.

The court there held that the foreclosure by the bank of a certain mortgage there described embracing real and personal property was irregular, and vacated it and declared the existence of the equity of redemption rather than the statutory right of redemption.

On remand, the trial court undertook to observe the mandate of this Court and ordered a reference to the register to state the account and ascertain the amount due on the mortgage. There was a reference and report, exceptions to it, and confirmation by the trial court, and final decree allowing complainant to redeem, and fixing the amount necessary to be paid by complainant to do so. Complainant not being satisfied with the amount so fixed has prosecuted this appeal.

We will treat the matters argued by appellant in brief in the order there stated: confining ourselves of course to such only as are thus presented. We will not here make a general statement of facts necessary to an understanding of each contention, but will do so as we treat each of them.

The first is based on objection made by complainant to the appointment of the register as the master to hold the reference and report, and his motion to appoint a special master on account of the disqualification of the register. The grounds of the objection and motion, which we need to mention, are that the register is related within the fourth degree to some of the stockholders of respondent bank, including J. O. Banks who is also its president and a director; that the register is a customer and depositor in said bank, and closely associated with said bank in business matters, has investigated or informed himself with reference to certain phases of this controversy and hence is apt to be biased in favor of respondent bank.

On hearing that motion, the evidence showed that the first wife of J. O. Banks was his own cousin, and the first cousin of the register. They had three sons still living and at least one of them and Mr. J. O. Banks were stockholders and directors of the bank, and that J. O. Banks was its president. That the grandfather of the register was a brother of the mother of J. O. Banks. The effect was that J. O. Banks and the father of the register were first cousins, and that he and the register were second cousins by consanguinity and first cousins by affinity. Pegues v. Baker, 110 Ala. 251, 17 So. 943; Morey v. Monk, 145 Ala. 301, 40 So. 411; Tagert v. State, 143 Ala. 88, 39 So. 293, 111 Am.St.Rep. 17. He was likewise a second cousin to the sons of J. O. Banks, through the relationship of their mother.

There was no evidence tending to show actual bias, except such as might be inferred from the fact of relationship, and that the register was a depositor and customer of the bank and has served as register throughout the proceedings in this cause, and thereby became familiar with what has occurred in its progress.

The question of alleged disqualification of a judicial officer has two aspects: (1) The mandatory provisions of chancery rule 6 and section 8570, Code; and (2) whether there were circumstances showing a probability of bias or other personal status of unfitness in fact to serve as register. Rule 6, supra, disqualifies the register when he is related to the parties within the fourth degree of consanguinity or affinity. This is mandatory, and does not appeal to the discretion of the court. As a second cousin he was related by consanguinity to J. O. Banks and his sons in the fifth degree. Mostilla v. Ash, 234 Ala. 626, 176 So. 356; Cambron v. State, 227 Ala. 575, 151 So. 443. The relation of first cousin is in fourth degree. By that he was related to J. O. Banks by affinity. Though his wife was dead, she had living children. So that if J. O. Banks stands in the attitude of a party to the suit, and the right was not waived, the register should not have been appointed master to hold the reference. We do not think it was waived. Rule of Chancery Practice No. 6, supra, does not, as does section 8570, Code, provide that the parties may consent to a trial before the disqualified officer only by matter of record or in writing.

In our case of Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565, we had occasion to consider the nature of consent under section 8570, supra. We there pointed out that that statute changes the general rule in that respect which otherwise obtains. Under the general rule there cited, applicable to the register here, if the facts are known the parties are bound to make objection before issue joined, and before the trial commences, otherwise they will be deemed to have waived the objection.

Rule 6, supra, has application to the register in the performance of any sort of service as such. If he is disqualified by relation to a party, and the objection is sought to be made available as applicable to his service generally, it should be made promptly when known to the parties. But the failure to do so, when the suit is begun, should not preclude the objection when he is specially appointed as a master to act in some judicial capacity, which is not a part of his duties otherwise. When such authority is conferred on him, it is a new appointment, then effective, and then is the time to pass on his qualifications for that particular service. State ex rel. McKleroy v. Benners, 185 Ala. 350, 64 So. 308.

The objection was duly made, and was not waived nor consent given.

What is the proper remedy? The general rule is that when some preliminary matter is available relating to something that is waived unless presented properly and in due time, if it is so presented and the contention overruled by the court, it is not lost by proceeding on other grounds of defense, and may be assigned as error on appeal from the final judgment. 49 Corpus Juris 244, section 312.

It is also the rule in equity that adverse interlocutory decrees may be assigned for error on appeal from the final decree though they are such as that no appeal is specially provided as to them. Bell v. King, 210 Ala. 557, 98 So. 796; O'Rear v. O'Rear, 227 Ala. 403, 150 So. 502; Sims Chancery Practice, section 583, note 4; Carter v. Mitchell, 225 Ala. 287, 142 So. 514.

There is also a principle that when pending a proceeding a ruling is made which is important in shaping the further progress of the case, so that the ends of justice would be better served by a review of it before proceeding further, and no provision for appeal is made, it may be reviewed by a petition to this Court for mandamus. Jones v. Wright, 220 Ala. 406, 125 So. 645; Ex parte Fletcher, 225 Ala. 139, 142 So. 30; 2 Alabama Digest, Appeal and Error, page 380, k 10.

This has been the usual method of reviewing a ruling upon the qualifications of the register or other judicial officer. State ex rel. v. Benners, supra; Ex parte State Bar Ass'n, 92 Ala. 113, 8 So. 768, 770; Medlin v. Taylor, 101 Ala. 239, 13 So. 310; Crook v. Newborg, 124 Ala. 479, 27 So. 432, 82 Am.St.Rep. 190; Bryce v. Burke, 172 Ala. 219, 55 So. 635. Many other cases are cited in Woodmen of the World v. Alford, 206 Ala. 18, 22, 89 So. 528, holding that mandamus is the proper remedy under such circumstances; and this case is cited on that point in Lindsey v. Lindsey, 229 Ala. 578, 158 So. 522. In those two cases, the question was raised on appeal. The Alford Case, supra, was reversed on other grounds, and the Lindsey Case, supra, was affirmed on the merits of the question. They do not hold, and no case apparently has held, that mandamus is the only remedy, when the question is properly presented and overruled. We think the ruling may properly be here assigned as error. This has been done.

We therefore proceed to a consideration of the merits of that question.

Under the rule 6, the register must not be interested in the subject matter of the suit. It is often stated that such interest must be direct and immediate to disqualify a judge. Ellis v. Smith, 42 Ala. 349, 353; Collins v. Hammock, 59 Ala. 448, 452; Woodmen of the World v. Alford, supra. The cases cited relate to the statutory qualification. But though he may not be disqualified by reason of such interest under the statute, any interest may with other circumstances be such as naturally and probably create a bias which at common law also disqualified a judicial officer. Mobile v. Grayson, 220 Ala. 349, 125 So. 221; Ex parte Cornwell, 144 Ala. 497, 39 So. 354.

We are not here concerned with the interest of the register which will disqualify him for he has no interest in the subject matter of the suit,...