149 Mich. 601 | Mich. | 1907
(after stating the facts). We regard the first assignment of error sufficient in form to raise the question of the disqualification of the judge and the consequent invalidity of the judgments. It is contended that we are not at liberty to consider this question. The motions which have been referred to were made November 28, December 8, and December 15, 1906, were heard December 29, 1906, and determined January 21, 1907, an opinion being filed. The writ of error was issued February 20, 1907, and was returnable March 29, 1907. The suggestion filed in this court is dated April 6, 1907, and the affidavits in support thereof were made March 26, 1907, and April 5, 1907, respectively. Two of the deponents, garnishee defendants, who join in an affidavit, say that about February 1, 1907, they first heard a rumor to the effect that Judge Gage was related by marriage to Aaron T. Bliss and Allaseba M. Bliss, and was disqualified, but were unable to obtain positive information until on or about March 26, 1907. One of the persons from whom they learned the fact óf the said relationship was Silas W. Tyler, who made the other affidavit, was one of the defendants in the original suit, and is father of the judgment debtor, who avers that on March 26, 1907, he learned the fact from Mrs. Bliss. The fact upon which disqualification is predicated was not then discovered or suspected by appellants until after the entry of the orders denying their motions. The earliest opportunity, therefore, for presenting the point was after the last action
Was the judge disqualified by reason of his relationship to the plaintiff ? A principal, challenge to a juror, at the common law, was one where the cause assigned carried with it prima facie evidence either of malice or of favor to one of the parties. There were, also, challenges to the favor, which depended upon some asserted or disclosed circumstances of suspicion, the validity of which was determined by triers who found whether the juror was or was not indifferent. Among the. principal challenges recognized was one predicated upon the relationship of the juror to a party. Blackstone says a juror was disqualified who was of kin to either party within the ninth degree. Chief Justice Champlin so stated the rule (obiter as to the degree), in Horton v. Howard, supra. Blackstone also treats consanguinity and kindred as terms to be defined alike. Book 2, chap. 14. Unlike the common law, our statute (3 Comp. Laws, § 10238) provides for peremptory challenges and it has been held that, therefore, the distinction between challenges for principal cause and to the favor is practically abolished. Holt v. People, 13
Our statute disqualifies a judge from sitting in a case in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties. 1 Comp. Laws, § 1109. Judge Gage was not related by consanguinity to Aaron T. Bliss and is not so related to Mrs. Bliss. It is unnecessary to do more than-refer briefly to the origin and history of the legal doctrine of affinity. It grew out of canonical maxim that sexual union makes man and woman one flesh. The application of the maxim, especially as affecting marriage, divorce, and the legitimacy of children, gave rise to rules, the intricacy of which is proof of the amazing ingenuity of the churchmen. The rules varied with different periods. The temporal courts were sometimes recalcitrant in adopting those which were formulated, and it is not always easy to determine the degrees of relationship established by these rules within which, at a particular time, marriage was prohibited. But the notion obtained, to some extent, that relationship other than by blood might be so intimate that of itself it ought to prevent officers and jurors from acting in matters in which their relatives were interested. Courts were called upon frequently to determine whether the challenge of a juror or of an array of jurors was a principal challenge or one to the favor, and in so doing apparently in
An examination of authorities has led to the conclusion that the doctrine of affinity relationship should be limited by the following rule: Affinity is the relation existing in consequence of marriage between each of the married persons and the blood relatives of the other, ánd the degrees of affinity are computed in the same way as those of consanguinity or kindred. A husband is related, by affinity, to all the blood relatives of his wife, and the wife is related, by affinity, to all the blood relatives of the husband. See Bouvier Law Dictionary, p. 113; 1 Am. & Eng. Enc. Law (3d Ed.), p. 911; 3 Cyc. p. 38; 33 Cyc. p. 583; 34 Cyc. p. 374; 1 Words and Phrases Judicially Defined, p. 345. It is true our statute was adopted from the State of New York, and that when adopted here it had received j udicial interpretation by the courts of that State (Foot v. Morgan, 1 Hill [N. Y.], 654; Paddock v. Wells, 3 Barb. Ch. [N. Y.] 333), and that in the last-mentioned case, at least, á different rule was stated obiter. But the judicial interpretation which can be said to be binding upon the courts of this State extended only to the point of determining that the statute must be aided by the common law. The particular rule of common law adopted and in force in this State is not to be determined author
. We conclude, therefore, that Judge Gage is related by-affinity to Mrs. Bliss; that he was not related by affinity to Aaron T. Bliss. He was not disqualified to hear and determine the causes or to enter the judgments sought to be vacated. It is conceded that he was disqualified to hear and determine the motions to vacate the judgments unless Mrs. Bliss is regarded as a nominal party, unless, also, an exception of necessity must be made because of the statute (1 Comp. Laws, §§ 276-284), which provides, among other things, that in Saginaw county—
“All cases made, motions for new trials and bills of exceptions and settlement of cases for review, * * * shall be heard, settled and certified by the judge before whom the trial or hearing was had.”
Mrs. Bliss is not a nominal party. She is beneficially interested in the estate of her husband as a preferred and as a residuary legatee. 23 Cyc. pp. 584, 585. It is Aell established that the rule of disqualification of judges must yield to the demands of necessity, as, for example, in cases where applied it would destroy the only tribunal in