Shireman v. Wildberger

• Decision Date: 04 April 1921
• Docket Number: 21350
• Citation: 125 Miss. 499,87 So. 657
• Court: Mississippi Supreme Court
• Parties: SHIREMAN et al. v. WILDBERGER et al

87 So. 657

125 Miss. 499

SHIREMAN et al. v. WILDBERGER et al

No. 21350

Supreme Court of Mississippi

April 4, 1921

APPEAL from chancery court of Coahoma county, HON. G. E. WILLIAMS Chancellor.

Motion to vacate judgment. Motion denied.

For former opinion, see 87 So. 131.

Motion overruled.

OPINION

ETHRIDGE J.

This case was affirmed on a former day, and this motion is filed to vacate the judgment because it is alleged that Sam C Cook, Jr., is a member of the firm of Cutrer, Cutrer & Cook, who represented the appellees in this court, and that the said Sam C. Cook, Jr., is a son of Judge SAM C. COOK of this court, a member of the division which rendered the judgment of affirmance; and that the firm of Cutrer, Cutrer & Cook have a contingent interest in the recovery in said suit, but that the precise interest that the said firm had in the recovery appellants are not advised, but that they are advised and so charged that the said firm of which Sam C. Cook, Jr., is a member are interested in the recovery herein and suggesting the disqualification of Judge SAM C. COOK and asking that the judgment be vacated.

The affidavit filed in support of the motion by the appellant alleges that one of the appellees, Mrs. Roseboom, is represented by Cutrer, Cutrer & Cook of Clarksdale, Miss., and that said firm is composed of J. W. Cutrer, J. C. Cutrer, and Sam C. Cook, Jr. "Affiant further states on oath, on information and belief that the said firm of Cutrer, Cutrer & Cook have a contingent interest in the recovery of the amount sued for in the above-styled cause, that is to say that if the appellees in said cause are successful in having said cause affirmed in the supreme court of the state that the said firm of Cutrer, Cutrer & Cook will obtain thereby a large sum of money as their contingent interest in the amount recovered." The affidavit nowhere states that such knowledge of interest was not known to the appellant and their attorneys prior to the submission of the case to the court, nor prior to the decision affirming the said judgment herein, nor does it state what information the allegation is based upon, nor when nor how it was obtained further than to allege that a printed civil docket of the February term of the circuit court of the Second judicial district of Coahoma county, Miss., shows that there is such a firm as Cutrer, Cutrer & Cook engaged in the practice of law and that they are listed as counsel for a number of plaintiffs and defendants.

Sam C. Cook, Jr., filed an affidavit in answer to this motion stating that he is not a member of the firm of Cutrer, Cutrer & Cook, and that he has no knowledge of any such firm, but that he is employed on a salary in the office of J. W. Cutrer, and that he is not advised as to J. W. Cutrer's interest in the subject-matter or the litigation, but that he is not interested therein, and that the recovery of the judgment would have no effect upon him one way or the other.

He further makes affidavit that before the case was called for argument that he disclosed to E. C. Brewer, one of the attorneys for the appellant and the attorney who makes the affidavit of disqualification, his connection and ...