Yazoo & Mississippi Valley Railroad v. Kirk

Cook, J., delivered the opinion of the court. This case was twice tried in the circuit court of Yazoo county. At the first trial the defendant below, appellant here, succeeded in convincing the jury that it was not guilty. This verdict was set aside by the court and anew trial granted. A special bil] of exceptions was presented to the trial judge and signed by him. When the case was tried a second time, the verdict of the jury was for the plaintiff. A motion for a new trial was overruled. So it is the action of the court in sustaining the first motion and overruling the second is before us for review. The same judge presided at both trials. The suit was instituted to recover the statutory penalty and actual damages resulting from alleged failure of the railroad company to construct and maintain necessary or proper cattle guards where its track passed through plaintiff’s inclosed lands. The.one-year statute of limitations was invoked in both trials to defeat plain-' tiff’s recovery of the statutory penalty. The statute was not specially pleaded, but evidence was given tending to establish the bar of the statute. In the special bill of exceptions it is stated by the judge that he had sustained the motion to set aside the verdict of the jury solely because the defendant had not claimed the bar in his pleadings. We think the reason given by the judge for his rulings was unsound, as the defense may be raised by the evidence and under the plea of the general issue.' The rule is analogous to the rule in criminal cases where the suit involves a penalty. Ency. Plead. & Prac., vol. 13, p. 282, and cases there cited. However, the ruling may — 50 — have been correct, though the reason upon which it was based may be fallacious; it being doubtful whether there was any evidence to support the bar. At the second trial the court peremptorily directed the jury to find' for the plaintiff the statutory penalty, and also for all damages which the evidence showed resulted from the failure of defendant to perform its statutory duties. Of course, the verdict of the jury was responsive to the directions of the court. As to whether or not the court erred at either or both trials is a close question, and the court may be affirmed or reversed without doing serious violence to the law or the record. The above review of the history of the case is set out for the purpose of emphasizing our views hereinafter expressed upon the important and far-reaching question which is involved in the determination of the rights of the parties to this suit. Passing by the other issues raised by the record and discussed in the briefs of counsel, and they are many, we come to the determining factor in the case. In the motion made by apellant to set aside the verdict of the jury and grant it a new trial, we find the following suggestion, viz.: “Because Hon. W. A. Henry, the presiding judge, was incompetent to hear the case, for the reason that Messrs. Barbour and Henry,- who were counsel for the plaintiff, are both related to said presiding judge, the former being a brother-in-law and the latter a son, and said Barbour & Henry had said ease upon a contingent fee. That the assignment of said interest of said Barbour & Henry was not filed with the papers, and was not known to counsel for defendant until after said cause was tried.” Upon the hearing of the motion, an agreement was introduced in evidence, and reads as follows: “It is agreed in this case that there was no assignment in writing to the attorneys, but that it was agreed with the plaintiff, Kirk, that they were to be paid a certain percentage of the recovery as compensation for their — 51 — services; that this fact was not known to the attorneys for the defendant until after the trial, and that the circuit judge knew nothing of what the agreement between the plaintiff and his attorneys was until the matter was presented on this motion. It is also admitted that J. F. Barbour is the brother-in-law, and W. A. Henry, Jr., is the son, of the presiding judge.” This presents a question to this court of paramount importance to litigants in the courts of the state, as well as to the general public. All are interested in the integrity, independence, and impartiality of the judiciary, the most important and powerful branch of our government. Not only must the judges presiding over the courts be honest, unbiased, impartial, and disinterested in fact, but it is of the utmost importance that all doubt or suspicion to the contrary must be jealously guarded against, and, if possible, completely eliminated, if we. are to maintain and give full force and effect to the high ideals and salutary safeguards written in the organic law of the state. The first clause of section 165 of the Constitution reads as follows: “No judge of any court shall preside on the trial of any cause where the parties, or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties.” The only difficulty in construing this constitutional limitation upon the power of judges to preside in the trial of causes lies in the interpretation and definition of the word “parties.” The courts of sister states have been called upon to define this word, appearing in statutes designed to cover the same conditions provided for in our Constitution. Some of the courts have adopted the narrow and technical signification of the word, and confined its application to parties to the record eo nomine, while others have given a broader and more liberal meaning to the statute by holding that by “parties” was meant every person — 52 — who had a pecuniary interest in the lawsuit, whether their names were mentioned in the pleadings or not. The Alabama court, speaking of a statute similar in its provision to our Constitution, says: “The purpose of the statute is to secure to litigants a fair and impartial trial,, by an impartial and unbiased tribunal. Next to the importance of the duty of rendering a righteous judgment is that of doing it in such manner as will beget no suspicion of the fairness or integrity of the judge.” Cook v. Newberg, 124 Ala. 479, 27 South. 432, 82 Am. St. Rep. 190. “The principle of disqualification is to have no technical or strict construction, but is to be broadly applied to all classes of cases where one is appointed to decide the right of his fellow citizens. Disqualifying statutes are not to be construed in a strict, technical sense, but broadly, with liberality. The term ‘party/ used to indicate- persons to whom the judge is related, and who are considered with the litigation, is not confined to parties of record.” 12 Am. & Eng. Ency. Law, pp. 41, 42, notes 3, 4. The Supreme Court of Texas, construing a statute which contains substantially the same language as the clause of our Constitution, said: “A narrow or contracted construction of the term ‘party/ which confines it to the very person named on the docket as such, would often defeat the end in view of having justice impartially administered, free from the bias and influence produced by the interest held in the cause by the judge or his relations.” No judge can sit who is of such affinity to either party that he might be challenged as a juror, and there can be no doubt but that the statute extends to the party beneficially interested, as well as the real party. Hodde v. Susan, 58 Tex. 394. See, also, Moses v. Julian, 45 N. H. 52, 84 Am. Dec. 114. In the case of Roberts v. Roberts, 115 Ga. 259, 41 S. E. 616, 90 Am. St. Rep; 108, the Supreme Court of Georgia, construing the word “party” in a statute referring to — 53 — the same subject-matter that is referred to in section 165 of our Constitution, said: “If one not a party to the record, but directly and pecuniarily interested in the result of the cause, -would be such a party thereto as to disqualify one of his Mnsmen from being a juror, he would .-also be such a party as to disqualify his kinsmah from presiding as a judge.” In Arkansas a lawyer engaged in the trial of a cause suggested to the court that R. C. Bullock, one of the attorneys in the case, was interested in the trial of said cause, and his fee depended upon the rendition of a judgment in favor of his client; that said R. C. Bullock was related to the judge presiding at the trial, and for this reason he asked the judge to decline to preside at the trial. The judge seemed to be very sensitive where Tie considered his judicial dignity was involved, and fined the lawyer for contempt. The lawyer appealed to the ^Supreme Court of the state. The Constitution of the .-state of Arkansas provides- that “no judge or justice :shall preside in the trial of a case in the finding of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity.” Const. Art. 7, Sec. 20. The Supreme Court of Arkansas, construing this provision of the Constitution, said: “While the Constitution speaks of a party to a cause, we are of the opinion that, both upon sound reason and according to the weight of authority, the word should not be construed in a technical and restricted sense to mean a party to the record, but it should be held to mean any one who is pecuniarily interested directly in the result of the suit, although not a party to the record and not necessarily bound by the judgment. Any other construction totally disregards the spirit and defeats the purpose of the constitutional prohibition, for if a judge may be influenced at all in his judgment by the fact that a person who is directly interested in the result of the suit is related to him, the potency of the — 54 — influence is not lessened by the absence of the related party from the record.” The court overruled the chancellor in adjudging petitioner to be in contempt, because the motion suggested legal ground for disqualification of the chancellor. Johnson v. State, 87 Ark. 45, 112 S. W. 143, 18 L. R. A. (N. S.) 619, 15 Ann. Cas. 531. As before said, some of the other states place a more technical and restricted construction upon the meaning of the word “party” and the case of Allison v. Railroad, 129 N. C. 336, 40 S. E. 91, is quoted by many of the courts as authority for the proposition that a judge is not disqualified because of the relationship of an attorney who is interested in the suit, when the fee of such lawyer depends upon the result of the suit. We think a careful reading of this case will demonstrate that there is no statutory or constitutional prohibition in the state of North Carolina, and for this reason the North Carolina court has adhered to the common law rule, which only disqualified judges because -of some interest of their own in the result of the suit to be tried. We are convinced that the broad and liberal rule of construction is the soundest and wisest rule, and, adopting this rule as our guide, we conclude that the circuit judge was disqualified to preside at the trial of this case. If the numerical weight of authority rested with the narrow view, we would unhesitatingly follow the lead of those courts adopting the broad and liberal construction of statutes and constitutions similar in language to our own Constitution. In the absence of precedent, we would feel constrained to create a precedent in harmony with our views. Every litigant is entitled to nothing less than the cold neutrality of an impartial judge, who must possess the disinterestedness of a total stranger to the interests of the parties involved in the litigation, whether that interest, is revealed by an inspection of the record or developed by evidence aliunde the record. The real parties in interest furnish the reason for the judge — 55 — to recuse himself when it becomes known that they are related to the judge, although they may not be parties eo nomine.' Was the suggestion made in time by appellant? The facts were called to the attention of the court by the motion for a new trial, and while the case was still within his control. It was also admitted that appellant’s attorney did not know of the interests of appellee’s attorneys in the litigation until after the trial. We think the point was made in time. Since the disqualification of the judge may be waived by the consent of the parties and of the judge, his judgment was not void per se, but simply voidable. It follows, therefore, that the disqualification of the trial judge must be seasonably suggested; that is to say, whenever a knowledge of his disqualification comes to the complaining interest, should such party “sit down upon the stool of do nothing,” he will be held to have waived the disqualification of the judge and to have consented to his presiding in the cause. In some jurisdictions it is held that the statute disqualifying the judge deprives him of all jurisdiction, and for this reason his acts are absolutely void. These decisions are usually based on the peculiar language of the statutes construed, and which, as a general proposition, in their very terms disqualify the judge when his own interest, or the interests of a relative, ’ may be affected by the decisions of the judge, and for this reason his judgment is entirely incapable of being made good, even by express consent. It will be noted that our Constitution provides that the disqualification may be waived by consent, and it is our opinion that consent will be conclusively presumed after the case has gone to final judgment, unless it affirmatively appears that the suggestion of the disqualification of the judge was made at some time before final judgment. — 56 — A very exhaustive and interesting collation of the authorities touching the void and voidable judgments of disqualified judges may be found in the notes to the New Hampshire case of Moses v. Julian, reported in 84 Am. Dec. 14. And for. the reasons given above, the case is reversed and remanded. Reversed and remanded. ON SUGGESTION O'E ERROR. Cook, J., delivered the opinion of the court. In response to the suggestion of error, we desire to say that we entertain no doubt as to the soundness of our views, expressed in the opinion heretofore rendered, touching the disqualification of the trial judge. •' We recede from the rule of pleading laicL down by us in the opinion, and now say that the statute of limitations must be. specially pleaded, and the trial court was correct in so ruling. The rules of this court, adopted January 4, 1910 (54 South, v.), have no application to the practice or procedure in other courts, and this is manifested by the language employed in the rules adopted. This court has no authority to prescribe rules for the government of trial courts, and has never attempted to usurp such power. The order heretofore entered, reversing and remanding this cause, is affirmed. Affirmed.