State ex rel. McKleroy v. Benners

ANDERSON, C. J. We may concede, without deciding, that the action of the chancellor in declining to appoint a special register in this case is an interlocutory order, not appealable, and that the said action is therefore reviewable by mandamus. — Brady v. Brady, 144 Ala. 414, 39 South. 237; Bridgeport Ice Co. v. Bridgeport Land Co., 104 Ala. 276, 16 South. 93; Ex parte Fechheimer, 103 Ala. 154, 15 South. 647. It may also be conceded, only for the purpose of deciding this case, that the execution of the reference in question by the register Shepherd involves judicial acts, and that the grounds of disqualification, as set out in chancery rule 6, are not the only ones to be applied to him, but the statutory and common-law grounds of disqualification of judges should also be applied. Yet the petitioner does not show such' a ground of legal disqualification, under said rule, the statute, or the common law, as made it imperative upon the chancellor to appoint a special register, and the petition for mandamus must be denied. While holding that it was not imperative upon the chancellor to grant the petitioner’s motion, no legal ground of disqualification having been shown, we think that he has a clear right, under section 3078 of the Code of 1907, whenever he deems it necessary to do so, and whether the register is legally disqualified or not, to appoint a special master, and which is largely, if not [354] entirely, within his discretion. Instances may arise in which the register may not be legally disqualified, yet conditions and surroundings may be such that his action and motive might be questioned and suspicioned, and, if reasonable grounds exist for bias or prejudice, the chancellor should, in justice to the parties as well as to the register, appoint a special master. We do- not mean to suggest that this should be done for a mere fastidious or conjectural suspicion of bias or prejudice, as judicial action is often attended with some little embarrassment, especially when there is a close and intimate association between the officer and the parties, one or both, but which should not, and which seldom does, affect the ruling or finding. The writ of mandamus is denied. McClellan, Sayre, and Somerville, JJ., concur.