Tampa St. Ry. & Power Co. v. Tampa Suburban R. Co.

• Decision Date: 25 October 1892
• Citation: 30 Fla. 595,11 So. 562
• Court: Florida Supreme Court
• Parties: TAMPA ST. RY. & POWER CO. v. TAMPA SUBURBAN R. CO.

11 So. 562

30 Fla. 595

TAMPA ST. RY. & POWER CO. v. TAMPA SUBURBAN R. CO.

Florida Supreme Court

October 25, 1892

Appeal from circuit court, Hillsborough county; G. B. SPARKMAN Judge.

Action by the Tampa Street Railway & Power Company against the Tampa Suburban Railroad Company to enjoin defendant company from building a street railway in the city of Tampa. A restraining order was granted, which was afterwards dissolved. From the dissolving order there was an appeal, and an order that the appeal should operate as a supersedeas. Defendant moves to vacate thesupersedeas. Motion denied.

Syllabus by the Court

SYLLABUS

1. Where an attorney advises a person that a certain instrument permit, or license gives him a legal right, and afterwards a controversy arises between that person and another as to whether it does confer the right, and the attorney has come to the bench, he is disqualified, by professional relation to the former party, to sit in judgment on the controversy.

2. Where complainant's bill founds his right to relief solely upon state legislation, the defendant cannot disqualify a judge by setting up in a plea or answer the absence of municipal authorization, although the judge, while at the bar, may have advised the complainant that it had the requisite municipal authority, and would consequently be disqualified if complainant's bill involved such authority.

3. Where a defendant joins issue upon a right of action, or on a material issue therein tendered by complainant's bill, or where he sets up as an affirmative defense new matter which constitutes a relevant defense to the case made by the bill and an issue, either of law or fact, is formed thereon, and the judge has been the counsel of either of the parties as to such matter, he will be disqualified, although the bill does not show the ground of disqualification; but a defendant cannot disqualify a judge by alleging matters as to which the judge may have advised the complainant, which are entirely irrelevant and immaterial to the case made by the bill.

4. Where the ground relied upon by a judge as disqualifying him is the fact of having advised, when at the bar, one of the parties to the cause upon 'certain questions involved in the suit,' the questions should be stated, in order that it may be seen whether they are involved, and do disqualify.

5. Jurisdiction does not attach to the court to which a cause is transferred if the facts stated by the transferring judge as disqualifying him do not do so.

6. The previous relation of attorney and client disqualifies a judge, notwithstanding there is no statute in this state making it a disqualification.

COUNSEL S. M. Sparkman and macfarlane & Pettingill, for appellant.

P. O Knight and Wall & Wall, for appellee.

OPINION

RANEY C.J.

The question of the disqualification of Judge SPARKMAN, of the sixth circuit, to make any orders in this cause, other than one of transfer, having been raised, it becomes necessary to decide it before proceeding to the other grounds of the motion to vacate the supersedeas. Judge SPARKMAN granted a restraining order, and afterwards, on the filing of a plea and answer, and a petition alleging his disqualification by reason of having advised the complainant as counsel before coming to the bench, concluded that he was disqualified, and transferred the cause to Orange county, in the seventh circuit; and Judge BROOME, of that circuit, having determined that the facts stated in the order of transfer as disqualifying Judge SPARKMAN did not do so, he remanded the papers to Hillsborough circuit court, in the sixth circuit. After this, Judge SPARKMAN made an order dissolving the restraining order which had been granted by him before transferring the cause. From the dissolving order there was an appeal, and an order that the appeal should operate as asupersedeas.

Before stating the issues presented by the pleadings and their bearing upon the question of disqualification, as it is presented by the order of transfer, a presentation of authorities on the point of a judge being disqualified by reason of previous professional relation to one of the parties to a cause is necessary.

In Taylor v. Williams, 26 Tex. 583,--an action of trespass to try title to land,--it was contended that the district judge was disqualified because he had been of counsel in other causes involving the same title. The constitution prescribed as the tests of the rule of disqualification interest in the case, connection by consanguinity or affinity with any of the parties to it, or having been of counsel in the cause. The supreme court held that the judge was not disqualified. In Railway Co. v. Ryan, 44 Tex. 426, the judge had, as a recital in the order of transfer, 'heretofore, as counsel, given an opinion as to the validity to the title to the land in controversy,' and it was decided that this did not show that the opinion was not given in some other case, instead of the one before the court, and that disqualification under the laststated ground of the constitution was not shown, its language being clear and express, and nothing being left to intendment or presumption. See, also, McFaddin v. Preston, 54 Tex. 403. Slaven v. Wheeler, 58 Tex. 23, was an action brought by appellant to recover land which she claimed as a homestead, it having been previously sold and conveyed by her husband without her consent. The plaintiff testified that she had some 10 years before the trial consulted the judge, then a practicing attorney, upon the questions involved in the case, and he had advised her with reference to the matters, but they did not make any agreement as to a fee; and the husband testified that the judge had, when an attorney, advised him and his wife 'what to do, and that the plaintiff would then have a good case, and that the agreement was she was to give half the land to recover it.' These statements were accepted by the appellate court as true, and that court, overruling the trial judge, found that he was disqualified, and held that the constitutional provision disqualifying one from sitting in a case where he has been counsel does not limit his disqualification to a case pending at the time his services as counsel were invoked; and that, if an attorney has been consulted as such, and has given advice as to a matter in dispute, which afterwards results in a suit between the parties at variance, he cannot act as a judge in that case, even though he charged no fee for his advice. In the opinion it is said of Taylor v. Williams, supra, that the decision was correct, for the judge had not been professionally connected as counsel with the parties to the suit and the subject-matter of the dispute then before him for determination. Newcome v. Light, 58 Tex. 141, is a case in which a wife had sued her husband for a divorce on the ground of cruel treatment, which suit was dismissed; and afterwards the husband sued the wife on the ground of abandonment, and obtained a decree of divorce. The judge who presided on the trial of the latter suit was the attorney of the husband in the former one, the defense being made that the husband was not guilty of cruel treatment, and hence that her abandonment of him was not instifiable; and it was held in a third suit, instituted by the wife against the husband for a partition of the community property, and revived by her executor on his death, that the judge was disqualified to sit in the second suit. In the opinion it is observed: 'Ostensibly the issue in the second suit--that of voluntary abandonment on the part of the wife--was different from that in the first,--cruel treatment on the part of the husband; yet if, in fact, the abandonment was caused by the cruel treatment of the husband, he was not entitled to a decree in his favor, as the abandonment would not, in a legal sense, have been voluntary. He defended the first suit on the ground that he was not guilty of cruel treatment, and hence that the wife was not justified in leaving him.' And again, after stating the parties to be as indicated above: 'It will be thus seen that the parties to all three of the suits were the same, either in their ow individual rights or as privies. The objects and the issues in their legal bearings and circumstances in the first two suits were so intimately blended as to be virtually the same, and the partition sought in the third was but the statutory result and incident of the first two.'

In Reams v. Kearns, 5 Cold. 217, an attorney had prepared the bill, and conducted to a decree for sale a suit between tenants in common, and there had been a sale under the decree, and a note had been taken of a purchaser for the amount bid by him, and the report of the sale was confirmed on such attorney's application. Several years subsequently a judgment was entered, on motion of the master who made the sale, against the surety on the note, under the chancery practice obtaining in that state. The judge who rendered the last judgment was the attorney referred to, and it was held that he was disqualified to render the judgment, as the surety or defendant in such judgment was a quasi party to the original cause. Curtis v. Wilcox, 74 Mich. 69, 41 N.W. 863, is a case in which the judge had, when counsel, been given the facts, and consulted as to a case in which the parties had attorneys, and had advised the party not to make any attempt to settle the case further than a compromise in his own behalf; and it was held that he was disqualified, under a statute which made being 'consulted or employed as counsel in the subject-matter to be litigated in said suit' a disqualification.

The decision of the supreme court of New Hampshire in Moses v. Julian, 45 N.H. 52, was that a judge of probate who has written a will...