Norwich Union Fire Ins. v. Standard Drug Co.

Ethridge, J., delivered the opinion of the court. The Standard Drug Company - filed a suit in the chancery court of “Lauderdale county against certain insurance, companies, among which was the appellant company, for violating the antitrust laws of the state — 525 — and for injuries resulting to the complainant by reason of such violations -of the statute. The appellant demurred to the bill filed against it, the demurrer was overruled, the cause was appealed to this court, and was affirmed and remanded, as shown in Norwich Union Fire Insurance Co. v. Standard Drug Co., 117 Miss. 429, 78 So. 353. After the case was remanded appellant was granted leave to amend or plead further. Subsequent to the decision of this court above referred to, a relative of the chancery judge was employed as counsel by the insurance company upon a contingent fee basis, that is, the said attorney was to be paid fifty dollars in cash and four hundred and fifty dollars additional, provided the defendant won all the suits filed by the appellee. Thereafter the defendant in the chancery court filed a suggestion of disqualification of the chancery judge because of his relationship or kinship to the attorney employed upon the contingent fee basis, as above stated. The complainant contested the suggestion for disqualification, and the chancellor declined to recuse himself, but granted an interlocutory appeal to settle the principles of the case. The. attorney, so employed on the contingent fee basis was a first cousin of the chancellor and the sole point presented for - decision is whether the chancellor was disqualified by reason of his kinship to the said attorney so employed on the contingent fee basis. The statutes involved are section 995, Code of 1,906 (section 715, Hemingway’s Code), which reads as follows : “Judge Not to Sit When Interested or Belated.— The judge of a court shall not 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, or wherein he may have been of counsel, except by the consent of the — 526 — judge and of the parties” and section 165 of the state Constitution, which 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. Whenever any judge of the supreme court or the judge or chancellor of any district in this state, shall, for any rea"son, be unable or disqualified to preside at any term of court, or in any case where the attorneys engaged therein shall not agree upon a member of the bar to preside in his place, the Governor may commission another, or others, of law knowledge to preside at such term or during such disability or disqualification in the place of the judge or judges so disqualified. Where either party shall desire, the supreme court, for the trial of any cause, shall be composed of three judges. No judgment or decree shall be affirmed by disagreement of two judges constituting a quorum.” This court in the case of Y. & M. V. Railroad Co. v. Kirk, 102 Miss. 41, 58 So. 710, 834, 42 L. R. A. (N. S.) 1172, Ann. Cas. 1914C, 970, in construing this provision disqualifying judges, held that the trial ' judge was disqualified to sit in a case where the fee of plaintiff’s attorneys, who were brother-in-law and son, respectively, of the trial judge, was to be a percentage of the amount recovered in the action. The agreement in that ease 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 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 agree — 527 — ment between the plaintiff and his atorneys was until the matter was presented on this motion.” It was also admitted that the attorneys were so related to the circuit judge. This court in that case, in construing the statute above set out, adopted that line of authorities which hold that, if the attorney who is interested in the subject-matter of the litigation, though not a formal party to the record, is related to the judge, his relationship to the trial judge disqualifies the trial judge in such ease, the court citing with approval in that opinion. Crook v. Newborg, 124 Ala. 479, 27 So. 432, 82 Am. St. Rep. 190; Hodde v. Susan, 58 Tex. 394; Moses v. Julian, 45 N .H. 52, 84 Am. Dec. 114; Roberts v. Roberts, 115 Ga. 259, 41 S. E. 616, 90 Am. St. Rep. 108; Johnson v. State, 87 Ark. 45, 112 S. W. 143, 18 L. R. A. (N. S,) 619, 15 Ann, Cas, 531, We are asked in the present case to extend the rule so as to make the word “parties” in the above statute include an attorney for the defendant, related as above stated, whose fee is a contingent one, even .though he has no contingent interest in the subject-matter of the suit nor in the judgment to be entered. An extensive examination of the authorities fails to disclose any case where an attorney for the defendant on a mere contingent fee disqualifies a judge related to such attorney under a statute similar to the - provision of our statute set out. It is relationship to the parties, or either of' them, to the suit that disqualifies a judge, and not his relationship to an attorney in the cause. We have gone farther than the majority of the courts in making an attorney related to the judge and having an interest in a' suit a disqualification to a judge as being a party within the meaning of the law. We adhere to the rule announced in the Kirk Case, but decline to extend it further. We ’ believe that the further extension of the meaning, of this term, even if — 528 — we had the power to enlarge upon the statute, would result in greater mischief than good. It is, of course, important that the trial judge be fair and impartial and removed from any improper influences in passing upon the rights of litigants, but to hold with the contention of the appellants would disorganize the judicial system of this state and result in practically unlimited special judges. The word “party” referring to judicial practice, is defined in Words and Phrases, First Series, vol. 6, as follows: “A party to an action or suit is one who is directly interested in the subject-matter in issue; who has a right to make a defense, control the proceedings, or appeal from the judgment [citing authorities]. . . . “Though, technically speaking, persons to whose use a suit is pending are not plaintiffs, yet in common parlance they might with propriety be both said to be parties where such use appears in the suit. . . . “A party is ordinarily one who has or claims an interest in the subject of an action or proceeding instituted to afford some relief to the one who sets the law in motion against another person or persons. Interest or the claim of interest is the test as to the right to be a party to legal proceedings almost without exception.” In the case of Young v. Harris, 146 Ga. 333, 91 S. E. 37, the Georgia court, one of the states which we followed in the Kirk Case, had a case analogous to the present before it for consideration, and it was held that an attorney, whose contract with his client provides that he is to be paid a certain sum in all events and a larger sum if the attorney’s client is successful, has no such interest in the subject-matter of the litigation as to disqualify the judge, who is a brother of the attorney, from presiding in the case. The court said at page 334 of 146 Ga., 91 S. E. 38: — 529 — “A judge is not disqualified to preside in a case because his brother is the attorney for one of the parties and the size of Ms fee is dependent on his success in the case. There is no statute or canon of law which disqualifies a judge on the ground of relationship to the attorney of one of the parties to a cause. Such disqualification must result only when he has a pecuniary interest in the subject-matter of the litigation.” And on page 335 of 146 Ga., 91 S. E. 38 of the same case it is said: “In the instant case the attorney has no interest in the res; he can recover nothing from the adversary party by virtue of his contract with his client, which is altogether outside of the subject-matter of the litigation. Such a contract gives the attorney no more interest in the litigation than if his contract were that his fee should be one sum should the trial occur at the first term and a different sum should the trial take place at a later term. Were the rule otherwise, it would be impossible for a judge to ever preside in a case where one of the attorneys is a kinsman within the fourth degree of consanguinity or affinity.” If the court should hold that a mere contingent fee, not rooted in the res, paid or agreed to be paid to a relative of the judge, would disqualify the judge, it would be within the power of the litigant to bring about the disqualification of the judge, even in this court, and even in criminal cases, and a litigant would never have to go to trial so long as he had means to employ attorneys related to the judge on a contingent fee. If this rule were established a man indicted for murder, or other felony, who did not want to stand trial, could wait until the case was called for trial, then employ on a contingent basis some attorney related to the trial judge by blood of marriage, suggest the disqualification of the trial judge, brought about by himself, and refuse to agree to a judge to try the case, and delay — 530 — the case until a special judge was appointed by the Governor and qualified, and then might employ an attorney related to the special judge on similar conditions, and thus disorganize the judicial administration of justice to such degree and to such extent as to produce infinitely more mischief than mere relationship to the trial judge could possibly produce. We have examined all of the authorities referred to by counsel, and we find no case which warrants us in extending the disqualifications of the judges related to the attorney for the parties on a mere contingent fee. So far as ascertainable from the reports all cases holding judges disqualified for relationship to attorneys employed on a contingent fee are cases where the attorney’s fee was a part of the judgment recovered, or where, his fee had to be fixed by the official action of the judge rather than by the parties employing such attorney. The chancellor having reached the same conclusion that we have reached, the judgment will be affirmed, and the cause remanded to be proceeded with. Affirmed and remanded.