State v. Pitts

• Citation: 139 Ala. 152,36 So. 20
• Parties: STATE EX REL. SMITH v. PITTS, PROBATE JUDGE.
• Decision Date: 02 February 1904
• Court: Supreme Court of Alabama

36 So. 20

139 Ala. 152

STATE EX REL. SMITH v. PITTS, PROBATE JUDGE.

Supreme Court of Alabama

February 2, 1904

Appeal from City Court of Selma; J. W. Mabry, Judge.

Mandamus by the state, on the relation of Oscar E. Smith, against P H. Pitts, probate judge, to compel the latter to certify his incompetency to preside in a lunacy inquisition proceeding. From a judgment sustaining a demurrer to the petition relator appeals. Affirmed.

Mallory & Mallory and W. W. Quarles, for appellant.

J. R Satterfield and A. L. McLeod, for appellee.

SHARPE J.

Looking to the appointment of a guardian for Susan P. Smith, Oscar E Smith, proceeding under the provisions of article 2, c. 57, Code 1896, filed in the probate court on September 25, 1903, a petition alleging that said Susan P. Smith was of unsound mind, and the owner of property requiring the care of a guardian, and praying for proceeding to determine whether the alleged mental unsoundness existed. Accompanying this petition was another, alleging that the probate judge was incompetent to act as judge in the proceedings commenced by the first-mentioned petition, and, to the end that a special judge might be appointed as provided by section 3381 of the Code of 1896, the petitioner asked that the judge certify his incompetency to the register in chancery. In the petition for recusation the facts averred as disqualifying the judge were that he was interested in the result of the proceeding for the appointment of a guardian, in that he had in December, 1900, bought from Susan P. Smith a lot for $3,500, which he afterwards conveyed to his wife by a deed containing the statutory warranty for $6,500, and which was being resided upon by himself and family; also that the judge was a material witness for the petitioner, having knowledge of facts tending to establish the mental unsoundness of Susan P. Smith; and also that the judge's wife was related to Susan P. Smith by consanguinity within the fifth degree. The judge refused to certify that he was incompetent, and thereupon Oscar E. Smith filed in the city court of Selma a petition for mandamus to compel such certification. This petition set forth the facts above stated, and, in addition, alleged that when the probate judge purchased the lot referred to "he was informed that the said Susan P. Smith was of unsound mind," and that by reason of the facts alleged and of the proceedings of inquisition a cloud had been cast upon the title to the lot held by the judge's wife. The city court sustained a demurrer to the petition for mandamus, and dismissed the same by a judgment from which this appeal was taken.

"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." These, among other causes of disqualification, are specified in the statute. Code 1896, § 2637. Upon the judge before whom the proceeding is brought is devolved the necessity of determining in the first instance his own attitude, and this he must do with regard to the duty which rests upon him both to sit when competent and to be recused when he is incompetent. This when the facts do not clearly place him in either category, may present to the judge a delicate and difficult question, but in solving...