132 Va. 215 | Va. | 1922
This is an application for a writ of prohibition to prohibit the Hon. T. N. .Haas, judge of the twenty-fifth judicial circuit, from hearing an action of law pending in his court under the style of Ewing v. Dutrow.
The facts and circumstances leading up to the controversy are as follows: A suit in chancery had been brought by Ewing and others against the Dutrows to recover damages for deceit alleged to have been practiced in the sale of certain corporate stock. There was a demurrer to the bill and several grounds of demurrer were stated, but the chief ground of demurrer relied on, and the one upon which Judge Haas rested his decision, was that equity was without jurisdiction in the premises and that the complainants’ remedy was a,t law. On this ground, the complainants’ bill was dismissed. An appeal was taken to this court (128 Va. 416, 104 S. E. 791), which affirmed the judgment of the trial court. Thereupon, Ewing brought his action at law in said circuit court against the Dutrows. Before the latter case was called for hearing, Ewing applied to Judge Haas, by motion in open court, supported by his affidavit, to certify to the Governor that he was so situated with reference to the case as to render it
“At the time of deciding the case in the circuit court, this respondent prepared a written opinion containing his decision and the reasons for it, but this opinion was not present with the papers of the case when the decision was announced in court, having been left lying in a basket on respondent’s desk, in his study, at his home, when the papers in this case, along with other cases, were put into his bag and carried to court. The case was decided in January, 1919. Some time afterwards—how long, the respondent does not remember—the opinion which had been prepared, as aforesaid, was handed by respondent to counsel for defendants (appellees) in the case to make such use of as he might see fit on the hearing of the case in the Court of Appeals. The greater portion of this opinion was embodied in the brief of counsel for the appellees (the Dutrows),
“In the opinion prepared by respondent, when deciding the case in the circuit court, respondent had referred to the jurisdiction exercised by the court of chancery to decree an abatement of purchase money for a deficiency in the quantity of land sold, and said that was a, different case from a demand for damages such as was made by the bill in the Ewing Case—proceeding further to distinguish the two cases briefly. Counsel for appellants, in their reply brief (p. 5), commenting upon the chancery jurisdiction to abate or compensate for a deficiency in the quantity of land sold, and seeking to draw from it an argument to support the jurisdiction in chancery of a demand for damages for deceit, said: ‘Appellees admit that equity has jurisdiction of a bill for an abatement of purchase money on a sale of land for a deficiency, and say ‘but that is a, different case from the one made by the bill in the case’; they fail, how
“On reading the reply brief for appellants, respondent, who had made a more exhaustive examination of the question at the time of writing the opinion than was expressed in the opinion, told Mr. Conrad that he would give him an answer to the two paragraphs above quoted, and proceeded to elaborate in a pencil note the treatment of the question contained in the opinion, and gave it to Mr. Conrad, counsel for appellees, this note citing and quoting from the case of Blessing’s Adm’rs v. Beatty, 1 Rob. (40 Va.) 287, 298, a case which respondent is satisfied he examined when the case was before him in the circuit court, though it was not cited in the opinion, probably because the reference was not immediately at hand when the opinion was written. What use Mr. Conrad made of this memorandum (which makes about a page and a half of typewritten matter), respondent did' not know definitely until the 21st day of September, 1921, when he caused an examination to be made of the files of the case in the records of the clerk’s office of the Supreme Court of Appeals, at Staunton, and upon information obtained in that way, as well as from the recollection of Mr. Conrad himself, respondent avers that the note furnished by respondent was never filed in the case at all, but the case of Blessing’s Adm’rs v. Beatty, referred to in the note, was cited by Mr. Conrad, with a statement of its purport, in a typewritten ‘insert’ comprising something less than nine lines, which was inserted in the paging of the brief, as respondent is informed, with the consent of counsel for the appellants.
“In the course of fifteen years of service as judge of the*220 twenty-fifth judicial circuit of Virginia, respondent has on a number of occasions given authorities and suggested arguments to counsel for use on appeal from his decisions, and sometimes has given written memorandums. He has given such authorities and suggestions to counsel for the appealing party, to combat his own decisions with, as well as to counsel who were for affirming his decisions. He does this sometimes from the bench, and sometimes in conversation with the counsel, together or separately, indifferently, as it may happen or as occasion may arise. His object has been to give such material as he had at hand, as the result of his study and research in reaching his own decisions, to the elucidation of the question involved. Respondent's interest is an intellectual and professional interest, not singular or unusual, and even involving little if any pride of opinion, though, of course, he desires to be right, and to be confirmed in his opinion that he is right by the approval of this honorable court.
* * * *
“Respondent denies that he is in a position of bias or prejudice by reason of his action in the premises, or because of anything else, and submits that the cause assigned for this proceeding is without merit and an empty thing.”
It appears from the testimony that the opinion of Judge Haas was not made a part of the record, nor filed with the papers in the cause in the clerk’s office; that Mr. Conrad is a brother-in-law of Judge Haas; that counsel for Ewing had no knowledge or information about the delivery by Judge Haas to Mr. Conrad of the copy of his opinion, or the pencil memorandum in answer to appellants’ reply brief, but that they recognized Judge Haas’ style in the brief for the Dutrows, and brought it to his attention, when he admitted the giving of said opinion to Mr. Conrad, and in this way they learned for the first time what had been done. A number of lawyers of the Rockingham bar testified that
The parties waived all questions as to the jurisdiction of this court to award the writ and have asked us to decide the case on its merits. Any order we could make in the case, except to dismiss it, would be the assumption of jurisdiction, hence we must pass on the question. Bragg v. Justis, 129 Va. 354, 106 S. E. 335.
In Coal Co. v. Doolittle, 54 W. Va. 210, 46 S. E. 238, the above quotation from the 23 Am. & Eng. Enc. of Law is cited with approval. In the latter case the disqualification was on account of interest in the subject matter and not mere bias, and in paragraph 3 of the syllabus it is said:
“In order to disqualify, the interest of the judge must be in the subject matter of the case, and not merely in a legal question involved in it,” but the text of the opinion hardly warrants the syllabus.
The evidence falls far short of establishing the relation-of attorney and client, and counsel for the petitioner distinctly disavow any intention of charging the judge with lack of integrity. The following cases have been cited by the petitioner on the subject of judicial conduct and the necessity for public confidence therein: Boswell v. Flockheart, 8 Leigh (35 Va.) 364; Bowers’ Adm’r v. Bowers, 29 Gratt. (70 Va.) 697; Louisville & N. R. Co. v. Taylor, 93 Va. 226, 24 S. E. 1013, also note 2 Va. Law Reg. 376; Davis
In the view we take of the facts of the case, it is unnecessary to review these or other cases on the subject. There is no charge here of proprietary interest in the subject matter of litigation, nor of relationship to the parties, nor of fraud or corruption, nor of lack of integrity on the part of the judge, but simply a charge of bias, or leaning of the mind of the judge to a certain conclusion upon a purely legal question which was decided at the trial of the first case,, and which cannot again arise on the trial of the second case; ,¡ and that the conduct of the judge in maintaining his view-of the legal question had been such as to place him in the position of counsel for the Dutrows. As already stated, the evidence does not at all warrant the charge that the judge occupied such a position, but it does disclose conduct on his part that was indiscreet,.unwise and injudicious, as is manifested by the present controversy. If he did not care to make his written opinion a part of his judgment, but wished counsel to have the benefit of it in the preparation of a brief in maintenance of his views, he should have filed it' with the papers in the cause, so that it might have been accessible to counsel on both sides, and have refrained from further connection with the controversy which had passed from his jurisdiction and was then pending before this court. The record in this cause does not disclose any reflection upon the honesty, the uprightness, purity or integrity of Judge Haas, and certainly we should not have sus
The stability of our government is dependent upon the inflexible integrity of its courts, and the confidence of the public in the courage, the impartiality and the wisdom of the judges in the prompt administration of even-handed justice to every litigant. This confidence cannot be betrayed with impunity, and ought not to be impaired by reasonable grounds of suspicion. The action of a pure and upright judge may, however, give rise to a suspicion of partiality or prejudice, when the surrounding facts and circumstances are unknown, but which vanishes in the light of their disclosure. So also counsel, in the heat of litigation and in their zeal in behalf of their clients, sometimes become so satisfied of the correctness of their conclusions that they cannot be convinced of their error, and often attribute an adverse view to bias or prejudice. But when the incident has passed, and reason has resumed her sway, they usually find that they have been hasty in their judgment, and that the judge has been as pure in his motives and as impartial
Refused.
