Theo. Hirsch Co. v. Mcdonald Furniture Co.
| Decision Date | 12 July 1927 |
| Parties | THEO. HIRSCH CO. v. McDONALD FURNITURE CO. THEO. HIRSCH CO. et al. v. SCOTT. |
| Court | Florida Supreme Court |
Rehearing Denied Nov. 25, 1927.
En Banc.
Suit between the Theo. Hirsch Company and the McDonald Furniture Company, in which Paul R. Scott was appointed receiver for the McDonald Furniture Company. After a final decree, the receiver applied to the court for the disqualification of the judge, which was denied.
From Several orders, including an order by the Judge of the Fifteenth Judicial Circuit holding the Judge of the Eleventh Judicial Circuit disqualified by prejudice, and directing that the receiver should pay himself a specified amount for services, the Theo. Hirsch Company and the McDonald Furniture Company appeal.
Reversed.
On Petition for Rehearing.
Syllabus by the Court
In chancery cause where judge is disqualified, cause may be heard and determined by judge of another circuit; unless judge of circuit in which chancery cause is pending is disqualified, judge of another circuit has no jurisdiction (Acts 1923, c. 9276). Where in a chancery cause the judge of the court in which the same is pending is disqualified, the cause may be heard and determined by the judge of another circuit. But, unless the judge of the circuit in which the cause is pending is disqualified, the judge of another circuit is without jurisdiction in the cause.
On filing statutory affidavit, properly supported, judge should pass on sufficiency of application, to invoke statute relating to change of judge for prejudice; prejudice of judge alleged in application for change of judge cannot be traversed or denied; if application for change of judge for prejudice is legally sufficient, judge alleged prejudiced shall proceed no further (Acts 1923, c. 9276). The statute (chapter 9276, Acts 1923) authorizing a party to any action or proceeding to disqualify the judge of the court in which such action or proceeding is pending, upon the ground of the prejudice of such judge against the applicant, provides that the affidavit, required to be made by the applicant 'shall state the facts and the reasons for the belief that any such bias or prejudice exists'; that the facts stated as a basis for the affidavit 'shall be supported in substance, by affidavit of at least two reputable citizens of the county, not of kin to the defendant or of counsel for the defendant,' and 'shall be accompanied by a certificate of counsel of record that such affidavit and application are made in good faith.' Upon the filing of an affidavit of the applicant, with supporting affidavit and certificate, conformable to this statute, it is the duty of the judge to pass upon the legal sufficiency of the application (subject to appellate review) to invoke the statute. The alleged prejudice of the judge cannot be traversed or denied. If the application is legally sufficient, 'such judge shall proceed no further therein.'
Judge against whom affidavit of bias or prejudice is filed has no discretion to determine whether he is prejudiced (Acts 1923 c. 9276). No discretion is vested in the judge against whom an affidavit of bias or prejudice has been filed to determine the question of whether or not he is prejudiced.
Proper practice is for judge challenged for prejudice, on due application, to state on record statutory disqualification when requisite affidavits and certificate are made and filed (Acts 1923, c. 9276). Under the statute, when the required affidavits and certificate relative to the prejudice of a judge in a cause are made and filed, 'such judge shall proceed no further therein, but another judge shall be designated in the manner prescribed by the law' as in cases 'where the presiding judge is disqualified.' The proper practice is for the challenged judge, upon due application, to state on the record his statutory disqualification, when the requisite affidavits and certificate are duly made and filed.
Judge challenged for prejudice has right to determine whether affidavits and certificate invoke operation of disqualifying statute; order of judge, challenged for prejudice not authorized by statute or otherwise erroneous, may be reversed and remedied on appeal (Acts 1923, c. 9276). The challenged judge has a legal right to determine whether all the prescribed affidavits and the required certificate relative to his asserted prejudice, severally containing matters of the nature required as a prerequisite to the operation of the statute, have been made and filed so as to invoke the operation of the statute to disqualify him; and if an order be made thereon is not authorized by the statute or is otherwise erroneous, it may be reversed and remedied on appeal duly taken.
Where jurisdiction of judge of one circuit depends on disqualification of judge of another, former may not ordinarily adjudicate latter's disqualification (Acts 1923, c. 9276). Where the jurisdiction of a judge of one circuit depends upon the prior disqualification of the judge of another circuit, the former is ordinarily without authority to adjudicate the disqualification of the latter.
Where judge challenged for prejudice erroneously enters order that he is not disqualified, statute does not authorize another judge whose jurisdiction depends on first judge's disqualification peremptorily to assume jurisdiction (Rev Gen. St. 1920, §§ 2528, 2674). Where an attempt is made under the statute to disqualify the judge of a circuit in which a cause originates or is pending, and that judge enters an order that he is nevertheless not disqualified in the cause, the statute does not authorize the judge of another circuit, whose jurisdiction in the cause depends upon the prior legal disqualification of the first judge, to peremptorily assume jurisdiction of the cause notwithstanding the order of the first judge, even though it might appear of record that the first judge erred in holding himself not disqualified, and his order would be reversed on appeal therefrom. Appeal from Circuit Court, Dade County; Mitchell D. Price, judge.
Shutts & Bowen and Evans & Mershon, all of Miami, for appellants.
Robert H. Anderson, of Jacksonville, for appellee.
This appeal is from several orders. Because, however, of the conclusion reached, reference to other than the first of them will be unnecessary. The judge of the circuit court of the Fifteenth judicial circuit entered an order fixing the amount and allowing compensation to the receiver for services rendered by him. This order is assigned as error. Decision on this assignment is decisive of the appeal.
The case was instituted and prosecuted to final decree in the circuit court of the Eleventh judicial circuit. Subsequent to the entry of the final decree the receiver, conceiving the judge of the Eleventh judicial circuit to be hostile to him, made 'application to the court for the disqualification' of said judge. Filed with this application was an affidavit of the receiver alleging that he 'fears that he will not receive a fair trial in the court wherein this suit and such application are pending on account of the prejudice of the judge.' It was accompanied with a certificate of good faith by counsel for the applicant and with supporting affidavits of two other persons.
On May 15, 1923, at Miami, the judge of the Eleventh judicial circuit made the following order upon the application for his disqualification:
On the following day, May 16, 1925, at Ft. Pierce, the judge of the Fifteenth judicial circuit made an order in the case finding that the statute prescribing the procedure in disqualifying a judge because of prejudice had, in all respects, been complied with; that the judge of the Eleventh judicial circuit 'is disqualified to hear this application by reason of his prejudice against the applicant,' and thereupon did allow compensation to the receiver, determined the amount, and directed that it be paid to him. This order, or so much thereof as is pertinent, is as follows:
'Whereupon, it is considered, ordered, adjudged, and decreed that the judge of the Eleventh judicial circuit of Florida, the Hon. H. F. Atkinson, is disqualified to hear this application by reason of his prejudice against the applicant, and that this judge has jurisdiction in the premises, and that the said sum of $15,000 is a reasonable compensation for the services performed by the receiver in this cause, and that said receiver, Paul R. Scott, do pay to himself the said sum of $15,000 from the moneys in his hands as the receiver in this cause and belonging to this estate in full payment of his compensation as such receiver, and that he do charge the same properly and accordingly in his accounts as such receiver.'
The controlling statute (chapter 9276, Acts 1923) is as follows:
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