State Ex Rel. Davis v. Parks
| Decision Date | 26 September 1939 |
| Citation | 194 So. 613,141 Fla. 516 |
| Court | Florida Supreme Court |
| Parties | STATE ex rel. DAVIS v. PARKS. |
Original prohibition proceeding by the State of Florida, on the relation of Thomas E. Davis, against L. L. Parks, as one of the Judges of the Circuit Court of Hillsborough County Florida, to compel respondent to desist from exercising further jurisdiction in a certain cause pending in the circuit court of Hillsborough county.
Writ granted.
E. V. Whitaker, W. B. Dickenson, and W. B Dickenson, Jr., all of Tampa, for relator.
Ray C. Brown, Chester H. Ferguson, and McKay, Macfarlane, Jackson & Ramsey, all of Tampa, for respondent.
On petition for Relator, a rule nisi in prohibition was issued from this Court directed to Respondent commanding him to desist from exercising further jurisdiction in a certain cause pending in the Circuit Court of Hillsborough County wherein Relator was the Plaintiff and Karl B. Cuesta was defendant. The petition and supporting affidavits were predicated on prejudice of the trial judge to both relator and his counsel.
A return to the rule nisi challenges the sufficiency of the affidavit of disqualification. The affidavit and suggestion of disqualification were made under Section 4341, Compiled General Laws of 1927, which requires that every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice as is relied on exists.
The suggestion of disqualification is supported by the affidavit of Relator alleging prejudice against him on the part of Respondent. It is also supported by the answer of respondent to the rule nisi in the case of State ex rel. Nuccio v. Parks, decided more than ten years ago, wherein it is contended that he admitted prejudice against Relator's counsel. The petition is also supported by affidavits of Alice Maree Sumner, John C. Summer, Thomas E. Davis, B. B. Poston, and W. B. Dickenson, attesting the continuing prejudice of Respondent to Relator's counsel and to Relator.
Section 4341, Compiled General Laws of 1927, does not in terms disqualify a trial judge for prejudice to a litigant's counsel but the contention of counsel for Relator in this case is that the litigation at bar in which respondent is charged with being disqualified is a damage suit in which he (Relator's counsel) has a contingent fee and being so, he is not only counsel but is in effect a party to the cause making the disqualifying statute apply to him.
Section 4341, Compiled General Laws of 1927, the disqualifying statute, does not require an unqualified statement of prejudice. If the facts attested evidence a fear of such prejudice as will endanger his securing a fair trial that is sufficient. Such a fear rests in the mind of the litigant and if the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there.
Prejudice to a lawyer would not necessarily extend to his client. Under the disqualifying statute, the prejudice to disqualify must be shown to the client but we would hesitate to say that prejudice to the lawyer could not be of such a degree as to adversely affect his client. The suggestion and the affidavits in this case evidence a situation that has not appeared in this court before. They show that on three former occasions, respondent has been disqualified by counsel for relator in important litigation. If the affidavits may be taken at face value, it is perfectly apparent why Relator 'fears' that he would not have a fair trial at the hands of the Respondent.
To defeat the contention of Relator, counsel for Respondent relies on the insufficiency of the affidavits to meet the requirements of Section 4341, Compiled General Laws of 1927. Limited to the technical content of the affidavits, this view could be upheld and supported but that is not the measure by which they should be evaluated. If taken as a whole, the suggestion and supporting affidavits are sufficient to warrant fear on the part of Relator that he will not receive a fair trial at the hands of Respondent, they are sufficient.
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Brown v. State
...neither can he See likewise State ex rel. Arnold v. Revels, 113 So.2d 218, 223 (Fla.App.1959) (quoting State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939); State v. Steele, 348 So.2d 398 (Fla.App.1977); Irwin v. Marko, 417 So.2d 1108, reh'g denied 419 So.2d 1198 (Fla.App.198......
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Rodriguez v. State
...and justice. The guaranty of a fair and impartial trial can mean nothing less than this. Id. at 1183 (quoting State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939)). The judge's actions during these postconviction proceedings offend the notion of a fair and impartial proceedin......
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Breakstone v. MacKenzie
...is not for the trial judge to say that it is not there.' " Livingston v. State, 441 So.2d at 1087 (quoting State ex rel. Davis v. Parks, 141 Fla. 516, 518, 194 So. 613, 614 (1939)). So long as the allegations " 'are not frivolous or fanciful, they are sufficient to support a motion to disqu......
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Livingston v. State
...are sufficient to warrant fear on the part of" a party that he will not receive a fair trial by the assigned judge. Parks, 141 Fla. at 519, 194 So. at 614-15. The facts alleged in the motion need only show that "the party making it has a well grounded fear that he will not receive a fair tr......