Jeffers v. Jeffers

The opinion of the Court was delivered by Mr. Justice Gary. This is an appeal from an order of the Circuit Court, refusing a motion for a new trial in the probate court, on the ground that the probate judge, at the time of filing the decree herein rendered by him, was related to one of the parties to the action, within the sixth degree. The proceedings were instituted in the probate court, on the 8th of February, 1909, at which time an order was made, requiring William A. Jeffers, executor of the will of AYilliam Jeffers, deceased, to take such steps as were necessary, to have said will probated in solemn form of law. On the 3d of August, 1910, the probate judge, before whom the case was tried, filed a decree in which he ruled, that the will propounded for probate, was not the last will and testament of William Jeffers, deceased. — 246 — The executor appealed from said decree, and, while the' appeal was pending, made the motion for a new trial, hereinbefore mentioned, in the Circuit Court, which was refused. The motion for a new trial, was based upon the following facts, alleged in the affidavit made by the executor: “That he was not informed before, or at the time the above entitled cause, was tried before the probate judge, nor did he have any notice whatsoever, nor could he have discovered prior to said trial, by the exercise of any reasonable diligence, that the probate judge, who tried the cause, was related within the sixth degree, or was second cousin to one of the parties to the cause, to wit: Mrs. Mary E. Singletary, formerly Mrs. Mary E. Jeffers, the widow of the testator, the late William Jeffers. That it is only since the trial, and the decision of the probate court in this case, that this matter, accidentally, came to the knowledge of this proponent and his attorneys, who have only now been able, to verify and obtain satisfactory proof of the facts above set forth, and the motion for a new trial could not have been made sooner.” The reasons assigned by his Honor, the Circuit Judge, for refusing said motion, are thus stated in the following order made by him, on the 8th of March, 1911: “This cause having come on, on a motion to remit the case to the probate court for a new trial, on the ground that the probate judge, who heard the cause, was within the prohibited degree of relationship: “Now, on hearing the motion and affidavits on both sides, and counsel on both sides being heard, it is: “Ordered, that, although it appears from the weight of the testimony, that the probate judge of Berkeley county, who heard the case below, was related to Mary E.- Jeffers, one of the defendants herein, within the sixth degree, — yet it does not sufficiently appear that the petitioner could not, by due diligence, have ascertained that fact before or during — 247 — the' trial, or before the decision in the probate court; and, therefore, in the opinion of the Court, the motion for a new trial should be, and is hereby, refused.” • 1 When this case was called for hearing, in the Supreme Court, the respondents’ attorneys raised the following preliminary question of jurisdiction, upon which they gave notice they would rely, as an additional reason, for sustaining the judgment of the Circuit Court: “That the Court of Common Pleas has no jurisdiction, to entertain a motion for a new trial in the probate court, on notice and affidavit, but that such motion should have been made before the judge of probate, in the Court of original jurisdiction.” In the first place, we do not regard the question as jurisdictional in its nature. The case of Jenkins v. Ry., 84 S. C. 343, 66 S. E. 409, shows conclusively, that the Court of Common Pleas has jurisdiction of the subject matter of the action, and, that even if that Court, did not have jurisdiction of the person in the first instance, it acquired such jurisdiction, when the party now interposing the objection, contested the, case upon the merits. See also Ex parte Hilton, 64 S. C. 201, 41 S. E. 978. 2 We proceed to the consideration of the question, whether there was error on the part of his Honor, the Circuit Judge, in ruling, that the motion for a new trial could not be sustained, as it did not sufficiently appear that the petitioner, could not by due diligence, have ascertained the relationship, before the rendition of the decision in the probate court. At common law, a Judge was not disqualified from presiding, by reason of his relationship to a party to the action, but had the privilege of declining to sit in such cases. It is now, however, generally provided by constitutional or statutory law, that relationship by affinity or consanguinity, between him and a party litigant within certain degrees, will disqualify him. 23 Cyc. 583. — 248 — “In the absence of statute changing the common law, a judgment rendered by a disqualified Judge, was held to be merely voidable and not void. The Judge’s action was regarded as an error or irregularity and, as such, a ground to set aside the judgment on error or appeal, except in inferior courts or proceedings, where no writ of error or appeal would lie. “In proceedings under the common law, objection to a disqualified Judge might be waived by a party, so as to preclude him, from afterwards taking advantage of it.” 17 Enc. of Law 742. See also note to the case of Carr v. Duhme, 10 Am. & Eng. Ann. Cases 967. Section 6, article V of the Constitution provides, that “no Judge shall preside, at the trial of any cause, in the event of which he may be interested, or when either of the parties shall be connected with .him, by affinity or consanguinity, within such degrees as may be prescribed by law.” Section 2320 of the Code of Laws, is as follows: “No Judge or other judicial officer, shall preside on the trial of any cause, where he may be connected with either of the parties by consanguinity or affinity, within the sixth degree.” A judgment rendered by a disqualified Judge in this State, is merely voidable. Ex parte Hilton, 64 S. C. 201, 41 S. E. 978. In the note on page 995, 24 Enc. of Law (1st ed.), the principle is thus stated: “After a trial has been commenced, no attempt to recuse a Judge will be listened to, unless it be shown, affirmatively, that the party was not aware of the objection, and was in no fault, for not knowing it.” (Italics ours.) This language is quoted with approval in Ex parte Hilton, 64 S. C. 201, 41 S. E. 978. In the case of Town of Clinton v. Leake, 71 S. C. 22, 50 S. E. 541, it was held, that the objection that members of the town council, were related to the defendant, would not — 249 — be considered, where the record failed to show, that such objection was urged at the trial. In the note to Johnson v. State, 15 Am. & Eng. Ann. Cases (Ark.) 531, appears the following quotation from Roberts v. Roberts, 115 Ga. 259: “The reasons at the foundation of the rule, which forbid a juror from sitting in a case, where he is related to some one pecuniarily interested, in the result-of the suit, would also apply in the case of a Judge, who was in a similar situation.” Turning to the case of State v. Robertson, 54 S. C. 147, 31 S. E. 868, we find that the rule is thus stated, in regard to the disqualification of a juror: “While it is true, that in the cases of Kennedy v. Williams, and Garrett v. Weinberg, supra, some stress is laid, and in a proper case properly laid, on the fact that the disqualification of the juror, was not known to the party or his counsel, until after the trial, yet we think this should be qualified by the proviso, that such ignorance is not due to the want of diligence; for where the disqualification relied on, might have been discovered by the exercise of ordinary diligence, it affords no excuse for failing to make the objection in due season; for, as was said in State v. Fisher, supra, a party ‘should not be permitted to take advantage of his own negligence.’ ” This language is quoted with approval in State v. Rafe, 56 S. C. 379, 34 S. E. 660, in which the Court also says: “It. was necessary for the appellant to show, not only that he did not know of the juror’s disqualification, until after the trial, but that by the use of due diligence, he could not have discovered the same.” (Italics ours.) If the appellant in addition to showing the disqualification of the probate judge, and that he (the appellant) did not have knowledge of such fact, before the decree was rendered, had also shown, that the probate judge knew at that time of his relationship to one of the parties to the — 250 — action, then it might with good reason be contended, that there should be a new trial. But no such fact appears in the record, and the presumption is, that the probate judge was not aware of the relationship, as otherwise he would have been guilty of a wilful violation of the law, which is never presumed. In the absence of testimony, showing that the probate judge had knowledge of said relationship, it has not been made to appear, that there was prejudicial error, in refusing the motion for a new trial. Appeal dismissed.