Keen v. Brown

Maxwejx, J. (after stating the facts). — The first error assigned by the appellant is the order transferring the cause to Gadsden county. It is objected that the order does not show a ground of transfer under the statute. The order does not state the ground of the court’s action, but recites that upon reading and filing the petition, affidavit and motion of complainant for change of venue in the cause, it is considered and ordered as follows, to-wit: that the prayer of the petition be granted, and change of venue to Gadsden county be awarded, and that the papers be transmitted to the clerk of that county. The record contains the petition and affidavit upon which the order was made and these state a ground of removal, i. e., prejudice on the part of the judge, a ground, the truth or falsity of which lay peculiarly within the knowledge of the judge. When he granted the petition and ordered the transfer he adjudicated the question of the existence of the ground for removal so alleged, and the ground adjudged to exist sufficiently appears from the whole record. This was not true in the cases of Smith v. Gibson, 14 Fla. 263, and Swepson v. Call, 13 Fla. 337, where the petition did not aid the order. It is further argued that section 1079 of the Revised Statutes; under which the order was made, provides for transfer [490] only because of prejudice against the party applying therefor, and not for partiality to the other side. The language of the statute is that the change may be ordered “on account of the prejudice of the judge of the court where the suit is pending.” Prejudice is defined as a leaning toward one side of a question from other considerations than those belonging to it; in law, a bias on the part of judge, jury or witness which interferes with fairness of judgment. The purpose of the statute is to secure impartiality in the judge trying the case, and this would be defeated as much by an undue leaning toward one party as by prejudice against the other. This same section of the statutes in providing for change of venue because of bias in the jurors of the county expressly makes either influence in the adverse party or odium in the petitioner a ground for the transfer, and both the spirit.and the letter of the provision in regard to the judge demand that it receive a construction equally 'broad. The statutory grounds of absolute disqualification in a judge, such as interest or relationship, are all based upon a presumed partiality in favor of one of the parties litigant; and when the favorable bias is not a mere presumption of law as in those cases, but is shown to be an existing fact, it is not the policy of the law that one so affected should sit in judgment in the case, and this provision for change of venue was enacted to secure that end. Other assignments question the correctness of the action of the lower court in allowing the defendants’ plea. The plea is faulty» in several particulars. It does not comply with the rule as stated by this court in the case of DaCosta v. Dibble, 40 Fla. 418, 24 South. Rep. 911, that a plea in equity setting up a former judgment in bar must set forth so much of the pleadings or proceedings in the former suit as will suffice to show that the same point was there in issue. The plea before us merely alleges the recovery of a common law judgment for $50, and of a second judgment for $1,693.85 balance due on account between the parties, with nothing except a bare averment in [491] terms to show the identity of the causes of action there sued upon and that presented by the bill in this case, or to overcome the natural presumption that as common law judgments. they were based upon some other cause of action than the litigation of unsettled partnership accounts. It is true that by reference to the bill may be seen some connection between the suits, and that it is the purpose of the bill to secure an accounting which will include the transactions litigated in the common law suits, but it does not appear therefrom that the bill was not intended to cover other transactions than these. Even if the common law judgments should stand unquestioned, the complainant may still be entitled to an accounting as to the partnership business.' It is not infrequent that transactions between partners, connected, with the business of the partnership, are so segregated from the general business of the firm as to support a common law action between the partners without involving a general accounting or winding up of the partnership affairs. It may be noted that the plea adds nothing to the allegations in the bill of complaint. “A' plea which sets forth nothing except what appears on the face of the bill is bad, and must be overruled, although the objection, if raised by demurrer, would have been valid, as the proper office of a plea is to bring forth fresh matter not apparent in the bill.” Fletcher’s Eq. PI. & Pr. 270. The defense of res adjudicata is one which may be raised by demurrer, where the facts supporting it appear from the bill. Davis v. Hall, 4 Jones Eq. (N. C.) 403. See, also, 9 Encv. Pl. & Pr. 613 ; Greenup v. Crooks, 50 Ind. 410; Williams v. Cheatham, 99 Ga. 301, 25 S. E. Rep. 698. We do not mean in pointing out this further defect in the plea as filed to intimate that a demurrer on this ground should, if interposed, have been sustained to the whole bill filed in this case; for, as above stated, it is not apparent from the bill that a cause for accounting may not exist as to transactions not embraced in the common law suits. [492] The decree will be reversed with directions that the plea be overruled. Carter, P. J., and Cockrerr, J„ concur. Tayror, C. J., and Hocker and Si-iackreford, JJ., concur in the opinion.