Roberts v. Roberts

• Decision Date: 25 April 1902
• Citation: 115 Ga. 259,41 S.E. 616
• Parties: ROBERTS v. ROBERTS.
• Court: Georgia Supreme Court

41 S.E. 616

115 Ga. 259

ROBERTS

v.ROBERTS.

Supreme Court of Georgia.

April 25, 1902.

JUDGE — DISQUALIFICATION — RELATIONSHIP —WRIT OF ERROR—DISMISSAL.

1. A judge who is related within the fourth degree of consanguinity or affinity to counsel for the applicant in an application for alimony, in which an allowance for counsel fees is asked, is disqualified from presiding in the case; and this is true notwithstanding counsel have a binding contract with the applicant which obligates her to pay them fees commensurate with their services, independently of whether the application for alimony and counsel fees is successful or not.¹

2. There was no merit in the motion to dismiss the writ of error.

(Syllabus by the Court.)

Error from superior court, Polk county; C. G. Janes, Judge.

Action by J. R. Roberts against Donia Roberts. From the ruling of the judge that he was not disqualified to preside, and an order requiring him to pay alimony, defendant brings error. Reversed.

Fielder & Mundy, King & Spaulding, and Blance, Wright & Tison, for plaintiff in error.

Sanders & Davis and Janes & Hunt, for defendant in error.

COBB, J. Mrs. Donia Roberts filed her application for alimony against John R. Roberts. The judge passed an order granting alimony and counsel fees, and this judgment was reversed by this court on the ground that the judge excluded evidence offered which should have been considered by him in determining the question. Roberts v. Roberts, 114 Ga. 590, 40 S. E. 702. When the application came on before Judge Janes for further consideration, counsel for respondent insisted that the judge was disqualified from presiding, for the reason that his brother, William Janes, Esq., was leading counsel for the applicant, and his fee in the case was contingent upon recovery, and would have to be paid by the respondent. It appeared from the evidence introduced before the judge that his brother was leading counsel for the applicant, and that the firm of which he was a member had a contract with her by which it was to be paid $100 as fees in any event for services in the superior court in connection with the first hearing of the application, but that there was no agreement as to services rendered in the supreme court, or in the second trial of the application in the superior court; that there was no arrangement made between the firm in question and associate counsel about the division of the $100; that the application asked for $300 as counsel fees, and that on the former hearing a judgment for $150 was obtained; and that counsel for the applicant expected to get pay for their services, whether counsel fees were allowed on the application or not. The judge held that he was not disqualified to preside in the case, and postponed the hearing until a later day. When the case came on for a hearing again, objection was raised to the judge presiding, on the ground that he was related within the fourth degree of consanguinity to the wife of Col. J. K. Davis, who was of counsel for the applicant. The judge refused to admit evidence offered to show the fact of relationship set up in this objection, and that Col. Davis' fee in the case was contingent, upon the sole ground that testimony on the subject of disqualification had been heard at a previous date. Counsel stated that they did not know of the relationship above mentioned before the day on which the objection was raised to the judge's presiding in the case. The judge held that he was not disqualified, and ordered the case to proceed, over the respondent's objection. After hearing evidence, the judge passed an order requiring respondent to pay to the applicant $150 as comisel fees and expenses, and $15 per month as temporary alimony. The respondent excepted, assigning error upon the ruling of the judge that he was not disqualified to preside in the case, and upon the order requiring him to pay alimony and counsel fees.

"It has been held that at common law the only ground for challenging a judge was personal interest, or interest such as would disqualify a witness." 17 Am. & Eng. Enc. Law (2d Ed.) p. 733. Under this rule, a judge would not be disqualified to sit in a case to which a relative was a party, and it has been so held, the doctrine being based on the ground that favor will not be presumed in a judge, though there are cases holding that, even at common law, relationship to parties operated to disqualify a judge, or was at least sufficient ground for his retirement on his own motion. Id. At common law, relationship to a party, either by consanguinity or affinity, was considered a ground of disqualification in a juror. Sir Edward Coke said that relationship in any degree was sufficient for this purpose, but later writers state that the relationship must be within the ninth degree, calculated according to the civil-law rules. Id. p. 1124. The general rule seems to be that a juror will not be disqualified by the fact that he is related to one of the counsel in the case, even though it be the prosecuting attorney. Id. 1126. The common-law rule, which disqualifies a juror in a case where he is related to one of the parties, is of force in this state, both in civil and criminal cases. Moody v. Griffin, 65 Ga. 304; Ledford v. State, 75 Ga. 856. The Penal Code recognizes as a ground of challenge for cause that a juror "is so near of kindred to the prosecutor, or the accused, or the deceased, as to disqualify him by law from serving on the jury." Pen. Code, § 973 (4). See. in this connection, McElhannon v. State, 90 Ga. 672, 26 S. E. 501. While there is nothing in the Code which in terms provides what degree of consanguinity or affinity to the prosecutor, or the accused, or the deceased, or the person who was the victim of the crime, will disqualify a juror, in civil cases it has been uniformly held that relationship within the fourth degree to either party, or to a member of a corporation which is a party, would disqualify. See Moore v. Association, 107 Ga. 199, 33 S. E. 65 (2), and cases cited. In Ledford v. State, supra, Mr. Chief Justice Jackson says: "The juror was disqualified, being a third cousin, and within the ninth degree." This statement by the chief justice, that relationship within the ninth degree would disqualify, we suppose, meant within the ninth degree as calculated by the rules of the civil law, and not by the rules of the canon law, which is of force in this state in reference to matters of inheritance. It has been held by this court that in determining the relationship of a party to a judge, in order to ascertain whether he is qualified to preside in the case, the rules of the canon law should be used. Short v. Mathis, 101 Ga. 287, 28 S. E. 918. It has been held that a juror was disqualified in a case where his half-brother was interested in the result of the case, although not a party to the record. Beall v. Clark, 71 Ga. 818. See, also, 17 Am. & Eng Enc. Law (2d Ed.) p. 1125. In Melson v. Dickson, 63 Ga. 682, 36 Am. Rep. 128, it was held that a juror who would be incompetent if related to a party would be equally incompetent when related to an attorney whose fees were conditioned upon a recovery in the case. In the opinion, Mr. Justice Jackson said: "Under the English law, no such fees are allowed to counsel, and therefore kinsmen of the counsel are not incompetent jurors. Hence the dictum in Bacon's Abridgement. 5 Bac. Abr. tit 'Juries, ' p. 354. But in our state the law is totally changed, and, the reason and spirit of the dictum ceasing, it has no authority here. They were as much interested and as partial as if of kin to the plaintiff himself, if the fee were half the recovery, and probably it was. At all events, they were not omni exceptione majores if the fee were any part of the recovery, and this it was proposed to prove." See, also, Crockett v. McLendon, 73 Ga. 86 (2), and cases cited.

It will thus be seen that at common law the Judge was not disqualified by relationship to a party or to a person interested in the result of the case, while a juror was. The common-law rule in reference to jurors has never been changed in this state, but has been steadfastly adhered to. The common-law rule in reference to the judge, which declared him disqualified only in a case where he was a party or interested therein, seems to have been the rule in Georgia until the adoption of the Code of 1863. See Cobb, Dig. 460; Clayton, Dig. 39. By the provisions of that Code, no judge was permitted to sit in any case or proceeding in which he was pecuniarily interested, or related to either party within the fourth degree of consanguinity or affinity, nor in which he had been of counsel, without the consent of all the parties at interest. Code 1863, § 199. These provisions of the Code of 1863 are now embodied in Civ. Code, § 4045, which contains a further ground of disqualification where the judge has presided in a case in an inferior judicatory, and his ruling or decision is the subject of review. Should the word "party, " in the section of the Code just referred to, be given the technical and narrow meaning of one who is a party to the record, and absolutely bound by the judgment in the case? Or should that word be construed more liberally, and include any one who is pecuniarily interested in the result of the...