42 Ala. 349 | Ala. | 1868
Lead Opinion
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
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 cog
It results that the application for a re-hearing must be refused.
Concurrence Opinion
I fully concur in what has been said by my brother Byrd, in response to the application for a re-hearing of these cases; but the zeal with which the application is pressed by the learned and able counsel for the appellants, and in consequence of some additional suggestions furnished by one of the counsel for our consideration since the main argument in behalf of the application was submitted, it is deemed proper to take further notice, briefly, of the question of interest of the judge of probate in the matters of litigation which came before him for adjudication.
The judge had the power, under our statute, to receive payment of the final decrees rendered against the guardian ; and on receiving payment thereof, became liable to pay over the money to the person entitled thereto, on demand. Bevised Code, § 793.
But the judge’s power to receive payment of the decrees was restricted, as against the plaintiffs in the decrees, to the reception of money — such money, only, as the plaintiffs were bound to accept. — Aicardi v. Robbins, January term, 1868.
Having received payment in Confederate States treasury-notes, the plaintiffs, therefore, were not bound to accept them, in satisfaction of their respective decrees ; and each had two separate and distinct remedies for the enforcement of the right to have good money. One was to treat the payment to the judge of probate, as a valid satisfaction, and coerce the payment of good money by him ; and if this remedy had been adopted, the judge would have been estopped from making the defense, that he had not received good money in satisfaction. The other remedy was, the one which was pursued, viz: To repudiate the payment to the judge, and coerce a valid satisfaction out of the defendant. — Aicardi v. Robbins, supra. These remedies being inconsistent, were not concurrent; but the right of
The only other liability the judge could be under, then, would be a liability to the defendant for the amount of the “ Confederate money” paid by the defendant to the judge. As to this it may be said : First. No legal liability could possibly exist on account thereof, until a demand was made of the judge for this currency, of which there is no proof' Second. Were the Confederate States treasury-notes still in the possession of the judge ? and if a demand of them had been made and followed by a refusal of the judge to pay or deliver them, still, no legal liability would be created against the judge thereby, for we judicially know such notes to be valueless. Third. The payment of said notes into the “ depository office” of the Confederate States at Atlanta, (with the exception of a small amount,) as is shown by the records, respectively, was no conversion of them by the judge, as against the defendant, at a time when they were of some value; because the defendant participated in the act of thus disposing of said notes, and ivas the principal agent in its execution. How, then, was the judge interested in the proceedings within the meaning of the statute ?
It must be borne in mind that in the present case the judge was not called upon to decide upon any question of disputed fact, the determination of which, one way or the other, would fix upon him, or exempt him from, liability. There was no dispute as to the material fads, most of which were proved by the defendant himself ; and the main duty of the judge was, to decide upon a legal question, presented by uncontroverted facts, the decision of which one way or the other, could impose upon him no legal pecuniary liability. And a pecuniary interest is the character of inter" est contemplated by the statute to disqualify the judge,, when he is not related to either party within the fourth degree of consanguinity or affinity, or has not been of counsel in the cause for either party. — Eevised Code, § 635.