— -This appeal is prosecuted from a judgment rendered by the city court of Anniston awarding a writ of mandamus to compel the appellant to certify his incompetency as probate judge to hear and determine the settlement of an аccount of one Gammon as administrator. The settlement to be*made by the administrator is one required under sections 298-299 of the Code after, declaration of insolvency of the estate.
One of the objections urged to the comрetency of the appellant, in the probate court, and upon which in part was based the demand that he certify his disqualifications to hear and determine the matters involved in said settlement as appears from the petition fоr the writ, was that S. L. Crook, a first cousin of the appellant, is one of the sureties upon the bond of Gammon as administrator. The fact of suretyship and the consanguinity of the surety, S. L. Crook, to the appellant, as alleged, is admitted in the answer to the petition.
It has been too often adjudicated by this court to be now a matter of doubt, much less of dispute, that sureties upon an administrator’s bond are bound and concluded by the decree against their principal primarily and to the same extent as their principal is bound. Banks v. Speers,
By the Arery letter of the statute if S. L. Crook had been th» administrator, instead of a surety, the probatе judge, his first cousin, would have been disqualified. Plowman v. Henderson,
The contention is that S. L. Crook, not being a party to the record and his liability as surety being remote or contingent, the disqualifying causes enumerated in the statute do not apply.
The purpose of the stаtute is to secure to litigants a fair and impartial trial by an impartial and unbiased tribunal. Next in importance to the duty of rendering a righteous judgment is that of doing it in such manner, as avíII beget no suspicion of the fairness or integrity of the judge. “The principlе 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 rights of his fellow citizens. * * * Disqualifying statutes are not to be cоnstrued in a strict technical sense, but broadly with liberality. The term ‘party’ used to indicate persons to Avhom the judge is related and aa’Iio are connected Avith the litigation, is not confined to parties of record.” — 12 Am. & Eng. Ency. Law, p. 41 and notes 3 and 4, p. 42.
The Supreme Court of Texas, in the case of Gains v. Barr,
In Foot v. Morgan, 1 Hill (N. Y.), 654, where the language of the statute ivas: “No judge can sit who is of such аffiity to either party that lie might be challenged as a juror,’’ the court said: “There can be no doubt that the statute extends to the party beneficially interested, as well as the real party.”
In Moses v. Julian, 45 N. H. 52, will be found an exhaustive dissertation in which a great many decisions are cited'upon the subject of the disqualification of judges by reason of interest, relationship or affinity and' bias or prejudice. Speaking directly to the paint here under consideration the learned judge said: “Relationship or affinity to either party in interest, though not a party to the suit, is a cause of recusation by either.”
The same construction has been placed upon our statute- (Code, § 2637) by this court in Gill v. State,
These authorities are conclusive that the disqualification extends not only to the party to the record, but that the judge is incompetent when related within the fоurth degree to any person interested in the judgment or deci’ee.
Is the interest of a surety tipon an administrator’s bond in a decree to be rendered on, a final settlement of
The purpose of the settlement is to state the account between the administrator and those interested in the matter of distribution of the assets of the estate, whether they be heirs or creditors. An accurate statement of the account is a matter in which the administrator and the adverse parties are vitally interested. This, of necessity, involves the allowance of proper credits to the administrator for all money legally disbursed by him and' a charge against him of only such items as he is legally chargeable with. In the matter of the statement of this account, it is of some moment to the sureties upon the administrator’s bond, that their principal should be charged only with such items as he is liable for, and that he be credited with all moneys rightly paid out by him, since the decree to be entered in the cause, by which they are bound, is predicated upon the account as stated by the judge. Indeed, we doubt nоt, but that they can prosecute an appeal to this court for. the purpose of reviewing the decree.
The principle here involved was expressly decided by this court in the case of Wilson v. Wilson,
The interest of the surety in the decree to be rendered is direct and, of consequence, his relation to the probate judge within the prohibited degree, renders the judge incompetent to hear and deterinine the cause. When this
The next contention of appellant is that mandamus is not the proper remedy to require the judge to certify his incompetency to the proper officer to make the appointment of a special judge. The argument is that the judge must judicially determine his competency vel non, and that his decision of that question must be reviewed by appeal. The same argument was made in the case of Ex parte State Bar Association,
In Graham v. The People,
We have not considered the other alleged ground of incompetency so ably argued by counsel on both sides, as a decision of that question is unnecessary under our vieAV of the case.
The judgment of the court below must be affirmed.