Stearns v. Stearns

• Decision Date: 09 August 1932
• Citation: 106 Fla. 440,143 So. 642
• Parties: STEARNS v. STEARNS et al.
• Court: Florida Supreme Court

143 So. 642

106 Fla. 440

STEARNS v. STEARNS et al.

Florida Supreme Court

August 9, 1932

Suit by Marvin Stearns and others against Lottie v. Stearns. Decree for complainants, and defendant appeals.

Appeal dismissed, and cause remanded.

ELLIS and BROWN, JJ., dissenting. Appeal from Court of Record, Escambia County; Thomas F. West, judge.

COUNSEL

J McHenry Jones, of Pensacola, for appellant.

R. P Reese and F. W. Marsh, both of Pensacola, for appellees.

OPINION

DAVIS J.

This is an appeal from the court of record of Escambia county from a final decree in chancery rendered in favor of the appellees in a partition suit brought in the court below.

But one question is necessary to be decided, and that is:

'If the regular Judge of the Court of Record of Escambia County is subject to challenge as being disqualified under chapter 10165, Acts of 1925, because of his being the father of the solicitor for the defendants in a Chancery case, and an application is filed by one of the parties to disqualify him under the statute, the provisions of which may under the terms of the statute be waived by a failure to assert the disqualifying ground, is it essential that the application for disqualification be first presented to and acted upon by the Judge of the Court of Record, and an order entered by him certifying his disqualification of record, before the case may be presented to, and decided by, a Circuit Judge acting as Chancellor, under section 4348, C. G. L., section 2681, R. G. S.?'

This court judicially notices the fact that Hon. C. M. Jones was the duly qualified and acting judge of the court of record of Escambia county at the time the final decree appealed from was entered. That decree, however, is signed: 'Thomas F. West, Circuit Judge, First Judicial Circuit, Escambia County, Florida.' The only showing in the record to the effect that Judge West was authorized to act in the place and stead of Judge Jones is the following recital in an order made and entered by Judge West in an interlocutory order overruling a demurrer in the cause:

'This cause coming on to be heard upon the demurrer of the defendants (the defendants Berdie Rosa Clark and her husband Perry Clark having adopted and joined in said demurrer) to the bill of complaint, and the same having been submitted by respective counsel without argument, and considered by the court, and upon consideration thereof.

'It is now ordered and decreed that the said demurrer be, and the same is hereby overruled, and the defendants are given until the 21st day of July, 1927 in which to plead or answer as they may be advised.

'The complainant, Josephine Stearns, having filed a certificate of disqualification of the Honorable C. M. Jones as Judge, this order is made by the undersigned in accordance with law.

'Done and ordered this 21st day of June, A. D. 1927.

'Thomas F. West,

'Circuit Judge, First Judicial

Circuit, Escambia County.'

The cause was brought in the court of record of Escambia county, Fla. That court exists and exercises its authority by virtue of sections 24, 25, and 39 of article 5 of the state Constitution. While, as a court, the court of record of Escambia county has concurrent jurisdiction in equity causes with the circuit court of Escambia county, the judge of the circuit court of Escambia county is not a judge of the court of record of Escambia county, and has no authority to act for the judge of the court of record of Escambia county except in the mode provided by law for such action. See 33 C.J. 1029.

Section 4348, C. G. L., section 2681, R. G. S., provides that, where the judge of any court other than the Supreme Court and criminal courts of record shall be disqualified from any cause to discharge any duty whatever pertaining to his office which is required to be performed in vacation or between terms, it shall be the duty of any other judge of a court of the same jurisdiction as the court in which the cause is pending to perform, on the direction of any party, such duties, and hear and determine all such matters as may be submitted to him, and such judge may perform such duties either in his own or any other jurisdiction, and shall be substituted in all respects in the place and stead, in the manner aforesaid, of the judge unable to and disqualified to act. This statute is sufficient authority to permit a circuit judge to act for and instead of the judge of the court of record of Escambia county when that judge is disqualified, when the action required is with respect to any duty which is required to be performed in vacation or between terms. This includes the right to hear and determine demurrers and render final decrees in chancery. Sommers v. Apalachicola N. R. R. Co., 85 Fla. 9, 96 So. 151.

But it has been held in this jurisdiction that a judge who is challenged on the ground that he is disqualified has a legal right to determine whether the matters set up as a prerequisite to the operation of the statute disqualifying him are in law sufficient to invoke the operation of the disqualifying statute. Hirsch Co. v. McDonald Furniture Co., 94 Fla. 185, 114 So. 517.

In this case the alleged disqualification of Judge Jones was predicated upon the provisions of chapter 10165, Acts 1925, which reads as follows:

'Nor shall any judge sit as a court in any cause in which he is related within the third degree of consanguinity or affinity to either of the attorneys or counsellors of either party to...