Murphy v. Barlow

Perkins, J. Barlow commenced an action of assumpsit against Murphy, in the Wabash Circuit Court. Pleas, non assumpsit, payment and set-off. The issues were made up while judge Biddle was the circuit judge. Afterwards, judge Pettit succeeded judge Biddle upon the bench. He was interested, having been of counsel in the cause, and was objected to. He appointed a special term for the trial of the case, and notified judge Stanfield, requesting him to hold said term. He did so, and the parties appeared at the calling of the cause on the 14th day June, and the same was continued to the 16th day, when it was submitted to the Court for trial, and a judgment was rendered for the plaintiff. A bill of exceptions states, “that on this 16th day of June, 1853, when this cause was called, the defendant objected to the jurisdiction of said Court, it being shown to the court that notice to hold the special term of the Court was given to the Hon. Thomas S. Stanfield by the Hon. John U. Pettit, on the 1st day of June, 1853; and further, that the R. S. of 1852 were distributed to- Wabash county on the 18th of April, 1853, and further that the disqualification of judge Pettit to try the cause was discovered at the Februa/ry term, 1852, whereupon said Circuit Court decided in favor of the jurisdiction, and refused to grant a [231] motion for a continuance of said cause.” The section of the statute under which the special term was appointed and held, is the third upon p. 5, of vol. 2, of the R. S. of 1852. It provides that when a circuit judge is a party, or interested, or related to, or is counsel for, a party, &c., and is, for that cause, objected to as judge, “he shall appoint a time during the vacation of such Court, and give ten days’ notice thereof to some other judge of a Court of record, who shall, at the usual place of holding Courts in such county, and at the time designated by such disqualified judge, not exceeding thirty days after the service of process, or, in appeals, after the discovery to him of his disability in such suit, attend at and preside therein,” &c. It is very evident upon a mere reading of this section of the statute, that the case before us does not fall within its letter; and it is as evident that it is embraced by its spirit; and the statute is a remedial one, and to be liberally construed. D. M. Cox, for the plaintiff. J. U. Pettit, for the defendant. In such a state of facts, it is a settled rule of construction, that where a case falls within the mischief to be remedied, and is clearly embraced by the spirit of the statute, the statute may be extended, by construction, to embrace it. We have, therefore, not without some hesitation, however, concluded that the Court did not err in taldng jurisdiction of the cause. It is also objected in this Court that the cause had been continued to the next regular term; but the appearance of the party to the cause at the special term, waived all objections of this character. Another bill of exceptions presents a statement of the points regarded by the judge as proved on the trial before him, and the legal positions he assumed in deciding the cause upon the evidence. But the statement, not purporting to set out all the evidence, is too vague and brief to enable us to determine upon the correctness of the finding upon the facts. Per Curiam.—The judgment is affirmed, with 1 per cent, damages and costs.