Tootle v. Berkley
| Decision Date | 08 April 1899 |
| Docket Number | 11167 |
| Citation | 60 Kan. 446,56 P. 755 |
| Parties | KATE TOOTLE et al. v. R. J. BERKLEY |
| Court | Kansas Supreme Court |
Decided January, 1899.
Error from Decatur district court; A. C. T. GEIGER, judge.
Reversed and cause remanded.
Waggener Horton & Orr, for plaintiffs in error.
Richard S. Horton, for defendant in error.
This proceeding involves the validity of an order of revivor, and the subsequent action of the district court in refusing to set aside the order of revivor because the judge who made the order was disqualified to act in the case.
It appears that on March 8, 1892, R. J. Berkley recovered a judgment against Tootle, Hosea & Co. and other defendants for the sum of $ 2000, together with interest that had accrued for a period of about five years. In October, 1897, a motion was made to revive this judgment, it being alleged that it was wholly unsatisfied and had become dormant. The defendants being non-residents of the state, notice of the hearing of the motion was given by publication, and on December 3, 1897, a hearing was had before Judge Geiger at chambers, and an order of revivor was made. Afterward, on December 3, 1897, a claim and notice of an attorney's lien was filed in behalf of Judge Geiger and his associate, in which it was stated that they had been attorneys for the plaintiff in the case and had obtained a judgment, and that for the conduct of two trials in the district court and two trials of the same cause in the supreme court they claimed a lien of $ 225. Shortly afterward, and on February 24, 1898, the defendants made a special appearance and moved the court, Judge Geiger presiding, to set aside the order of revivor upon the ground that the judge who made it had no authority to revive the judgment, for the reason that he was an attorney of record in the action at the time of the trial and when the judgment was obtained, and that by reason of his connection with and interest in the case he was disqualified to make the order which was made. This order was refused, except as to the representatives of two of the parties, who had died since the judgment was rendered, and the court then declared that the judgment revived at chambers on December 3, 1897, should be in full force and effect and stand revived as against all of the defendants except the two named. Exceptions were taken to these rulings, and the principal question presented in this review is whether a judge who had been of counsel in the case, and had assisted in obtaining the judgment, and who was seeking to enforce a lien upon the judgment for his services, could legally hear and determine a motion to revive the same.
None of the essential facts as to the disqualification of the judge is in dispute, and that he was disqualified is hardly open to controversy. Our statute expressly provides that a judge who is "interested or has been of counsel in the case or subject-matter thereof" is disqualified to sit; and to prevent a failure of justice by reason of his disqualification provision is made for a trial before a judge or tribunal not disqualified to hear and decide the controversy. (Laws 1897, ch. 108, § 1; Gen. Stat. 1897 ch. 95, § 51.) If the statute were silent on the subject the judge would nevertheless be disqualified to act. It is a rule of the common law and a principle of natural justice that no man shall be judge in his own case or in one in which he may have a pecuniary interest. It has been said that "the learned wisdom of enlightened nations and the unlettered ideas of ruder societies are in full accordance upon this point." (Insurance Co. v. Price, 1 Hopk. Ch. 1.) The...
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State v. Coleman
...of In re Hupp's Estate (1955), 178 Kan. 672, 291 P.2d 428, 432, the Kansas Supreme Court reiterated the rule declared in Tootle v. Berkley (1899), 60 Kan. 446, 56 P. 755, where it ". . . when circumstances and conditions surrounding litigation are of such nature they might cast doubt and qu......
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State v. Logan
...is not wholly free, disinterested, impartial and independent. In re Estate of Hupp, 178 Kan. 672, 291 P.2d 428 (1955), Tootle v. Berkeley, 60 Kan. 446, 56 P. 755 (1899). On the other hand, this court has said that "everyone is entitled to a fair trial before an unbiased and impartial judge,......
- Berkley v. Tootle
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State v. Solem
...accused to be tried before a judge in a fair, unbiased and impartial manner. (State v. Bowser, 155 Kan. 723, 129 P.2d 268; Tootle v. Berkley, 60 Kan. 446, 56 P. 755.) Thus, it is held that one who acts in a judicial capacity is disqualified from hearing any matter concerning which he may be......