Webb v. Town of Eutaw

WALKER, P. J. — In this case, as in the case of Ex parte Dew, 7 Ala. App. 437, 62 South. 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, on 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 [476] that the bank which was referred to in the motion was carrying a loan which it had made to the town of Entaw 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 the 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 debtor is solvent, as, in the absence of any showing to the contrary, he is presumed to be (Jones on Evidence, § 57), his success in the suit will not inure to the pecuniary gain of a creditor who is not a party to it, and his failure will not imperil or in any way impair the claim of such creditor. The interest which will disqualify a judge must be direct and immediate. If it is not shown that he has any pecuniary interest in the judgment that may be rendered (that he can gain or lose as a result of it), or that he bears any such rela [477] tion to the proceeding or to any party to it as to justify an inference that he would be subject to an improper bias that might influence his conduct, whatever concern he may possibly have in the result of the proceeding because of a business relation with one of the parties to it is to be regarded as too remote or contingent to constitute a ground of disqualification. — Ellis v. Smith, 42 Ala. 349; Ex parte State Bar Association, 92 Ala. 113, 8 South. 768; State ex rel. Smith v. Pitts, Judge, etc., 139 Ala. 152, 36 South. 20; Ex parte Cornwell, 144 Ala. 497, 39 South. 354; State v. Call, 41 Fla. 442, 26 South. 1014, 79 Am. St. Rep. 189; 23 Cyc. 576. We are not of opinion that a presiding judge is shown to be disqualified to preside in a cause by proof of the bare fact that he is a stockholder in a corporation to Avhich one of the parties is indebted. Proof of this fact by itself would not support the conclusion that either such corporation, or the judge AAdio is a stockholder in it, has such a direct and immediate interest in the result of the suit as is contemplated by the provision of the statute as to the competency of a judge (Code, § 4626), or that the latter bears such a relation to the proceeding as to create in him Avhat at common laAV would be regarded as a disqualifying bias. What has been said disposes of the only assignment of error Avhich has been insisted on in argument. Affirmed.