Pegues v. Baker

• Decision Date: 05 June 1895
• Citation: 17 So. 943,110 Ala. 251
• Parties: PEGUES v. BAKER.
• Court: Alabama Supreme Court

17 So. 943

110 Ala. 251

PEGUES v. BAKER.

Supreme Court of Alabama

June 5, 1895

Appeal from circuit court, Marshall county; J. A. Bilbro, Judge.

Action in a justice court by Arthur A. Pegues against W. M. Baker for damages for a breach of contract. From a judgment for plaintiff, and overruling a motion of defendant to dismiss the cause because it was not brought in the precinct in which defendant resided, or in the precinct where the cause of action, if any, arose,-there being a justice of the peace in the precinct where defendant resided,-defendant appealed to the circuit court. From a judgment of the circuit court dismissing the cause on motion of defendant based on the above grounds, plaintiff appeals. Reversed.

O. D Street, for appellant.

Lusk &amp Bell, for appellee.

BRICKELL C.J.

The statute (Code, § 3303) exempts a defendant from suit by ordinary civil process before a justice of the peace, without the precinct of his residence, or of that in which the debt was created, or the cause of action arose, and declares that a suit brought contrary to its provisions must, on motion, be dismissed by the justice. But if there is no justice, or notary public having the jurisdiction of a justice, within the precinct of the defendant's residence, or if the justice is, from any cause, incompetent, the summons may issue, and the cause be tried by the justice of an adjoining precinct. Id. § 3305. In this case there was but a single justice in the precinct of the residence of the defendant, and he had married a first cousin of the defendant; but the wife had been dead for many years, leaving children surviving. The question is whether the justice was incompetent to try the cause. The statute declares: "No judge of any court, chancellor, county commissioner, or justice, must sit in any cause or proceeding in which he is interested, or related to either party within the fourth degree of consanguinity or affinity," etc. Code, § 647. The disqualifications which the statute declares are not exclusive. There are disqualifications which the common law imposes, remaining of full force. Gill v. State, 61 Ala. 169; Medlin v. Taylor, 101 Ala. 239, 13 So 310. A judge or justice may be without pecuniary interest which will be affected by the result of a suit pending before him, and yet he may be a party to, or have an interest in, a suit involving the same questions upon which he is required to pass judgment. The bias,...