12 S.D. 226 | S.D. | 1899
This was an action for the foreclosure of pledged collateral given by the defendant to secure the payment of two certain promissory notes, one for $5,000 and the other for $1,500, payable to the order of the plaintiff. The complaint is in the usual form. To this complaint defendant filed, an answer admitting certain allegations in the comjfiaint, denying certain others, and interposing a counterclaim. Before the trial of the case the defendant presented the following petition and application: “To the Above-Entitled Court: The petition of Michael McGuire, the above-named defendant, repectfulty shows that he is informed and believes, and therefore alleges,that the wife of the Hon. William Gardner, the presiding judge of this court, is the owner of fifty shares of the capital stock of the plaintiff coloration, and is also a director thereof, the total stock of the said corporation being five hundred shares; each of the par value of one hundred dollars, and that your petitioner fears that the said judge might for that reason be unconsciously prejudiced or biased in the consideration of said cause. Wherefore your petitioner respectfully prays that the said judge will not proceed further herein,but will cause the said action to be placed u[)on the special calendar, and be set down for trial before some other circuit judge of the said state,” On the hearing of this petition the court made the
No bill of exceptions has been settled in the action. The respondents therefore make the point in this case that, there being no bill of exceptions, the petition and order of the circuit court are not properly before this court for review. Respondents are correct in their contention, unless the petition and order are properly part of the judgment roll. We are inclined to the opinion that they do constitute a part of such roll. Section 5013, Comp. Laws, defining what shall constitute the judgment roll, reads as follows: “Unless the party or his attorney shall furnish the judgment roll, the clerk, immediately after entering the judgment, shall attach together, and file the following papers, which shall constitute the judgment roll; * * * 2. In all other cases, the summons, pleadings or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, exceptions, case and all orders or papers in any way involving the merits and neecessarily affecting the judgment.” It will be noticed that “all orders or papers in any
Assuming that the statement made in the petition, that the wife of the trial judge owned 50 shares of the capital stock of the plaintiff bank at the time the case came before the lower court for trial, is true, the question is fairly presented, was the trial judge qualified to proceed with the trial of the said cause? It is well settled law that a judge who is interested in an action is disqualified to try or determine the same. So firmly is this established that Cooley, in his work on Constitutional Limitations, lays it down as a rule that it is not competent for the legislature, even, without the aid of some constitutional provision to permit a judge who is interested to sit at the trial of the cause. Cooley, Const. Lim. (5th Ed.) 403-410; Insurance Co. v. Price, 1 Hopk. Ch. 1; Adams v. Minor, (Cal.) 53 Pac. 815; Williams v. Bank, (Tex. Civ. App.) 27 S. W. 147; Nalle v. City of Austin, (Tex. Sup.) 22 S. W. 668; Templeton v. Giddings, (Tex. Sup.) 12 S. W. 851; Gregory v. Railroad Co., 4 Ohio St. 675; Railway Co. v. Howard, 20 Mich. 18; Stockwell v. Board, 22 Mich. 341; Moses v. Julian, 84 Am. Dec. 114; Clark v. Lamb, 2
Neither the constitution nor the statutes of this state have prescribed what shall constitute a disqualification of a supreme or circuit judge, other than that provided in Article 5, §31, of
The contention is made on the part of the respondent that the appellant waived his right to object to the judge taking jurisdiction of and trying the cause by applying to the said court for an in junctional order relating to the same subject-matter. It is doubtful if the proceeding referred to is before this court on this appeal. It is true, the learned circuit court, in making the order refers to the fact that such an application had been made to the court, and seems to base its order denying the petition on that ground. But, assuming that the appellant did find it necessary to apply to the circuit court or judge for an injunctional order, to prevent some irreparable injury to himself, it cannot be said that he thereby conferred jurisdiction upon the court to try the merits of the cause now before us. If the view we take of the case, that the judge of the circuit court was indirectly interested, and was therefore disqualified from sitting in the case, is correct, then it follows that the judgment entered in the case was entered without jurisdiction on the part of the court. Judge Cooley states the rule thus: “Nor do we see how the objection of interest can be waived by the other party. If not taken before the decision is rendered, it will
The judge acting in such case is not; simply acting irregularly but he is acting without jurisdiction.” Cooley, Const. Lim., (5th Ed.) 510; Freem. Judgm., supra. We are of the opinion, therefore, that the learned circuit court was in error in holding that the fact that appellant had applied for an injunctional order regarding the same subject-matter constituted a waiver of his right to object to the judge proceeding with the trial of the said cause.
Without, therefore imputing to the, learned circuit judge, in the slightest, any improper motive for proceeding with the trial of the said cause, or believing for a moment that the fact that his wife was interested could or did influence his decision in the case, still we must hold that he was absolutely disqualified from sitting in the case, and that the judgment entered therein must be reversed. The judgment of the circuit court is reversed..