Webb v. Town of Eutaw

• Decision Date: 20 November 1913
• Citation: 9 Ala.App. 474,63 So. 687
• Parties: WEBB v. TOWN OF EUTAW.
• Court: Alabama Court of Appeals

63 So. 687

9 Ala.App. 474

WEBB v. TOWN OF EUTAW.

Court of Appeals of Alabama

November 20, 1913

Appeal from Circuit Court, Greene County; Bernard Harwood, Judge.

Action by the Town of Eutaw against Mattie Y. Webb. From judgment for plaintiff, defendant appeals. Affirmed.

Evans &amp Jack, of Greensboro, for appellant.

McKinley, McQueen, Hawkins & Snow, of Tuscaloosa, for appellee.

WALKER P.J.

In this case, as in the case of Ex parte Dew, 62 So. 261, in which a judgment similar to the one appealed from was brought into question by a petition for mandamus, the question of the presiding judge's having a disqualifying interest in the case was first raised by a motion for a new trial, one of the grounds of which was the following: "Because the evidence developed that the First National Bank of Eutaw had loaned money to the city of Eutaw for the purpose of carrying out a contract for the street, sidewalk, and gutter improvement, and for which, or a part of which, in this suit it is sought to hold the property of the defendant liable and defendant now shows to the court that your honor, by reason of the fact that he is a stockholder in said bank, was disqualified from sitting in the trial of said cause." In the trial of the case evidence had been adduced which tended to prove that the bank which was referred to in the motion was carrying a loan which it had made to the town of Eutaw to enable it to pay the cost of the street improvement, for a part of which a lien upon the property of the defendant was declared by the judgment rendered in the present case. On the hearing of the motion for a new trial the presiding judge admitted that he was a stockholder in the bank mentioned. There was neither allegation nor proof to the effect that that bank had any interest or concern in the proceeding beyond being a simple contract creditor of the municipality which was asserting the right to a lien on the defendant's property. It was not averred or proved that the loan of the bank to the town was secured by a pledge of the proceeds of the proposed assessment against the defendant's property, as authorized by section 1409 of the Code. The loan may have been legally made without any such security having been given. Code, § 1181. The showing made was of nothing more than that the presiding judge was a stockholder in a bank to which one of the parties to the cause was indebted. It was not shown that the bank itself had any interest in the suit except such interest as a simple contract creditor has in his debtor's being successful in any litigation to which he may be a party.

If the...