Ellis v. Smith

42 Ala. 349

• Court: Supreme Court of Alabama
• Decided: January 15, 1868
• Status: Published

Opinions

BYRD, J.

These eases present the same questions, and upon the authority and reasoning of the following adjudications, we must affirm the decision of the probate judge in each case: — Bobo et al. v. Thompson, 3 Stew. & Porter, 385 : Randolph v. Ringgold et al., 5 Eng. (Ark.) 279 ; Trumbull v. Nicholson, 26 Ill. 149; Cook & Lampkin v. Bloodgood, 7 Ala. 683 ; Armstrong v. Garrow, 6 Cow. 465; Catlett v. Alexander, 4 How. (Miss.) 404 ; Morton et al. v. Walker, 7 ib. 554; Gasquet et al. v. Warren et al., 2 Sme. & Mar. 514; Wood et al. v. Robinson, Ex’r., &c., 3 ib. 271; Ankeletons v. Torrey, 7 ib. 467 ; Anderson v. Carlisle et al., 7 How. (Miss.) 408 ; Hevener v. Kerr, South. (N. J.) R. 58 ; Coxe v. State Bank, 3 Hals. 172 ; 13 Mass. 235 ; Moody v. Mahurin, 4 N. H. 296; Sinclair v. Piercy, 5 J. J. Mars. 64; West, Oliver & Co. v. Ball & Crommelin, 12 Ala. 340, and the case of Chapman, Lyon & Noyes v. Cowles, decided at the June term, 1867, of this court. As the counsel for the parties do not raise the question upon their brief, of the competency of the judge of probate to try the issue joined in these cases, we will not express any opinion thereon.

Although the court may have erred in its rulings on the exclusion or admission of evidence, yet as it is manifest from the uncontested testimony, that the appellant can never succeed in Ms motion, we will not review the exceptions as to those rulings.

Affirmed.

An application has been made for a rehearing in these cases, and it is predicated on the ground that the court did not pass upon the question of the competency of the judge of the probate court to hear and decide them; and that the judge was interested, and therefore the decision made by him is void and should be reversed.

The Code, (§ 560,) provides that “ no judge of any court chancellor, county commissioner or justice, must sit in any cause or proceeding in which he is interested,” &e. "We are satisfied that the judge was not interested m the “cause or proceeding” within the meaning of the statute. And in support of this opinion we cite the following authorities: Peck et al. v. The Freeholders of Essex, Spencer’s R. (N. J.) 457 ; Thomas et al. v. The State, 5 How. (Miss.) 20 ; Com. v. Ryon, 5 Mass. 90; Commissioners, &c. v. Lytle, 3 Ohio, (Ham.) 289 ; The Board of Justices v. Fennimore; Coxe’s (N. J.) R. 190; Lyon v. The State Bank, 1 Stew. 442; Cranch v. Castleberry, 23 Ala. 85; Heydenfelt v. Towns et al., 27 Ala. 423.

This question must often become an embarrassing one to a judge. For if he is competent, and transfers the cause to the register in chancery, under §§ 808 and 2302 of the Revised Code, the subsequent proceedings by the register would be held void. And if the judge is incompetent from interest, his action, if he proceeds with the cause, would also be void under the provisions of the statute. It devolves upon him to decide the question ; and if he decides to retain jurisdiction, the interests of society and the presumptions to be indulged in favor of judicial integrity, would require us to affirm his decision, unless it is clear to us that he is interested in the cause or is otherwise incompetent. If he should transfer the cause, his action, for the •same considerations, should not be reversed and the proceedings before the register held void, unless it clearly appeared that the judge of probate was not interested.

In the case of Peck et al. v. The Freeholders of Essex, supra, Carpenter, J., delivering the opinion of the court, said : “ The interest which will disqualify a judge must be)direct and immediate, and not remote and contingent. Any other construction would be harsh, constrained and technical; and would, without any just reason, merely throw impediments in the way of suits, and unnecessarily embarrass the administration of justiceand further : “It is a reasonable intendment, upon the words of this statute, that the interest to disqualify a judge should, if minute, at any rate be direct and immediate.”

The reasoning employed by this court in the case of Gaines v. Harvin, 19 Ala. R., on another question, but cognate to this, should have some force and consideration with us, in a case of doubt and difficulty.

It results that the application for a re-hearing must be refused.