Perry v. Bush

46 Fla. 242 | Fla. | 1903

Tayror, C. J.

This cause came on for hearing upon a motion made before this court for final judgment, under the provisions of chapter 4922, laws of 1901, in this court against the' plaintiffs in error and the sureties upon their supersedeas bond heretofore given on writ of error from this court, the judgment of the Circuit Court in said cause having heretofore been affirmed here on such writ of error. The motion is presented here and signed by B. H. Palmer as attorney for the defendant in error in said cause. The same is resisted here upon the ground, among others, “because the B. H. Palmer who signs and presents said motion to the court is one and the same B. H. Palmer who is judge of the Third Judicial Circuit Court of Florida, and, therefore, disqualified from the practice of law in any of the courts of this State, or from appearing therein for any client as attorney.”

As this ground of opposition to the motion is in the nature of a plea in abatement thereof, predicated upon reasons that do not touch the merits of the motion itself, and does not involve any of the other grounds of opposition thereto, we will consider such ground of opposition alone, without reference to the merits of the motion itself. We are entirely satisfied that the quoted ground of opposition to the motion is well taken. Of the fact that the B. H. Palmer who, as attorney for the defendant in error, signs and presents such motion here, is the same person that is the present presiding judge of the Third Judicial Circuit of Florida, this court will take judicial notice. We are likewise fully satisfied that when an attorney at law is elevated to the bench of any of our circuit courts as the judge thereover presiding, his right to practice law as an attorney, counselor or advocate in any of the courts of this State becomes suspended and continues to be suspended so long as he occupies the official position of such circuit judge, except, perhaps, in those cases alone wherein he is in propria persona a party in the cause, and in such excepted cases his appearance therein in the courts, if at all, should be to represent and protect his own individual rights exclusively. It is true that we have no statute upon our books in express terms forbidding circuit judges from practicing law, but the rights, duties, privileges and functions of the office of an attorney at law, counselor or advocate are so inherently incompatible with the high official functions, duties, powers, discretions and privileges of a judge of one of our circuit courts, with their vast range of jurisdiction both original and appellate, that express inhibitory legislation on the subject would seem to be superfluous and a work of supererogation. Our State is divided into eight judicial circuits, presided over by one circuit judge to each of said circuits, the territory comprising each of them being circumscribed by well defined metes and bounds. This careful defining of the territory to be presided over by each was not alone for the convenient dispatch of business before the courts, nor alone for the prevention of conflicts in jurisdiction, but as well to subserve the convenience of the people that inhabit the several counties comprised in said respective circuits. Another statute gives to such citizens the right and privilege to have their causes tried in the county where the cause of action arose or in which the thing in controversy is located, or in which one or more of several defendants reside. This right and privilege is one common to both parties to every controversy before such courts. The plaintiff has the privilege and right to have the venue of his action in such county, and equally so has the defendant. For a circuit judge officially presiding over such county to disqualify himself from adjudging such cause by acting as attorney for either of the parties thereto, is not only to repudiate his official duty to hear and determine such cause as judge, but is an invasion of the right of both parties thereto to have such cause tried and determined in such county. It is the official duty of circuit judges to hear and determine all legal and equitable controversies arising within théir respective circuits, in which they are not disqualified for reasons beyond their control, and over which they have jurisdiction either original or appellate, and it is not the policy of the law to permit them to evade or repudiate the discharge of such duty by voluntarily disqualifying themselves to hear and determine any such cause by acting for either of the parties thereto as attorney or counsel. If one of them can disqualify himself by acting as counsel for one of the parties to a cause, all eight of them can do the same thing, and a designing party with a bad but important case in the courts could effectually stop the wheels of justice in so far as his case was concerned by employing an array of eight judges to represent him as counsel. The jurisdictions of this, the court of last resort, and the circuit courts are so inseparably related to each other that it is equally as obnoxious to the ethics governing the judiciary to permit a circuit judge to practice here as an attorney as it is for him to appear as attorney in the lower courts. A cause comes here for appellate review from a circuit court, it is reversed here and remanded for further proceedings as directed. To represent either of the parties thereto before this court as attorney will disqualify a circuit judge to further hear or determine such cause as judge upon its remand from this court as effectually as though he had originally represented such party therein as attorney in the court of first instance. If such circuit judge is permitted to appear here as counsel in one cause why should he not be permitted to act here as such in all causes? The line of demarkation between cases where such appearance might be proper or improper would often be so nebulous that the only safe course to pursue, to insure the occupancy by the judiciary of a position above suspicion or reproach, is to forbid such appearance in foto. People v. Evans, 72 Mich. 367, 40 N. W. Rep. 473; Wright v. Boon, 2 G. Green (Iowa), 458; Morton v. Detroit, B. C. & A. R. Co., 81 Mich. 423, 46 N. W. Rep. 111; Smith v. Lovell, 2 Mont. 332; Duverney v. Vinot, 11 Martin (La.), 722; French v. City of Waterbury, 72 Conn. 435, 44 Atl. Rep. 470; Hobby v. Smith, 1 Cowen (N. Y.), 588; Seymour v. Ellison, 2 Cowen (N. Y.), 13; Evans v. Funk, 151 Ill. 650.

It follows from what has been said that we must decline to .consider the motion presented in this case, and said motion is hereby ordered to be stricken from the docket.

Hocker, Shackleford, Carter, Maxwell and Cockrell, JJ., concur.