41 Ga. App. 587 | Ga. Ct. App. | 1930
E. L. Smith brought suit in the city court of Eastman against Queen Insurance Company upon a policy of insurance written by the defendant upon property of the plaintiff. The trial resulted in a directed verdict for the defendant, and the plaintiff’s motion for a new trial, assigning error upon that ruling, having been refused, he brought the case to this court upon the main bill of exceptions; whereupon the defendant sued out a cross-bill, assigning error upon exceptions pendente lite taken by the defendant to rulings with which it was dissatisfied.
In our opinion the record presents a proper case for the application of the rule that when this court or the Supreme Court has before it both a main bill of exceptions and a cross-bill, and the latter presents a question which is controlling upon the case as a whole, it will be disposed of first, and if the judgment therein excepted to is reversed, the writ of error issued upon the former will be dismissed. Central of Georgia Ry. Co. v. Bridwell, 34 Ga. App. 77 (2), 81 (128 S. E. 238), and cit.
The suit was filed to the April term, 1928, of the.city court of Eastman, and process was duly issued by the clerk in the name of Hon. O. J. Franklin, the presiding judge of that court. There was no service as required by the process, and on May 7 Judge
Hpon this issue Judge Franklin was sworn as a witness and testified as follows: “I am judge of the city court of Eastman, and was such judge at all times in 1927 and up until now. I have not been of counsel in this case for the plaintiff since this suit was filed in my court. Since March 3, 1927, and up until now I have had absolutely no interest in the outcome of this case and will not have any. When the order as taken at the April 1928 term and the order was taken at the July 1928 term, I was not in a financial way or any other way interested in the outcome of the ease. The fourth Monday in April, the fourth Monday in July, and the fourth Monday in October of the respective years are the regular quarterly terms of my court. Some time prior to this matter passing into the hands of Colonel H. H. Elders, attorney of record for the plaintiff, Mr. Smith (the plaintiff) came to me and I had something
There was no dispute as to the facts stated above, and from them we think it is apparent that Judge Franklin was disqualified to sit in the cause. Section 4642 of the Code provides that “no judge or justice of any court _. . can sit in any cause or proceeding . . of which he has been of counsel, . . without the consent of all the parties in interest.” It does not appear that Judge Franklin was prohibited from the practice of law in other courts than his own, nor that he was incapacitated to represent the plaintiff as attorney in the negotiations with the insurance company or the adjuster. The acts in reference to the city court of Eastman
We think it would be a narrow and technical construction to hold that the word “cause” should include only a suit or proceeding in court. Such as interpretation might seem to be required by some of the language in McMillan v. Nichols, 62 Ga. 36; but in that case the judgment was attacked merely by affidavit of illegality, and since the judgment could not be thus collaterally avoided, it was not necessary to decide whether the judge was disqualified because of his prior relationship to the plaintiff and the subject-matter. The opinion in Meeks v. Guckenheimer, 102 Ga. 710 (29 S. E. 486), contains language of the same import as that to be found in the McMillan case, but this also was obiter; so that neither of these eases can be said to be binding as authority upon the question under consideration. A case more directly in point and one which seems to be controlling upon the question is that of East Rome Town Co. v. Cothran, 81 Ga. 359 (4) (8 S. E. 737). From the decision in that case it appears that Hamilton, trustee, procured an order from the judge of the superior court, on February 10, 1860, authorizing the sale of certain property in which his minor children were interested, but who were not represented by guardian
In the well-considered case of Tampa Street Ry. Co. v. Tampa Suburban E. Co., 30 Fla. 595 (11 So. 562, 17 L. R. A. 681), the Supreme Court of Florida held that, “Where an attorney advises a person that a certain instrument or permit or license gives him a legal right, and afterwards a controversy arises between such person and another as to whether or not it does confer such right, and the attorney has come to the bench, he can not sit in judgment between those persons in that controversy, but is disqualified to do so by virtue of such professional relation to thé former party on the subject of that controversy.” See also, in this connection, Anderson v. Rawley Co., 27 Haw. 60; State v. Perkins, 124 La. 947 (50 So. 805); Durham v. State, 85 Tex. Cr. 143 (124 S. W. 932); Juliana v. State, 167 Ind. 421, 426.(79 N. E. 359); 15 R. C. L. 534, § 22; 33 C. J. 1002. As to the portion of the same statute to the effect that a judge will be disqualified who is “related to either party within the fourth degree,” our Supreme Court has held that the word “party” will include any person who is pecuniarily interested in the result of the suit, although not a party to the record and not necessarily bound by the judgment therein. Roberts v. Roberts, 115 Ga. 259, 262 (41 S. E. 616, 90 Am. St. R. 108); Dobbins v. Marietta, 148 Ga. 467 (97 S. E. 439). These cases by analogy, will further support the statement that the provision now under consideration should be given a liberal construction. Accordingly, we hold that Judge Franklin’s representation of the plaintiff in the. ante litem negotiations operated to disqualify him, under the provisions of section 4642 of the Civil Code.
Did the orders passed by Judge Franklin merely for the purpose of extending the time for service and appearance and the issuance of new process constitute such judicial'acts as were affected by his disqualification, or, in other words, did the entering of these orders amount to a sitting or presiding in the cause within the meaning of the statute? We think this question should also be answered in the affirmative. The disqualification will not extend to mere formal acts designed to bring the case before a proper tribunal for adjudication, but will prohibit the hearing of the case or the making or passing of any order in relation thereto which is
The main bill of exceptions presented the question of whether the policy was forfeited under the stipulation against a change of “possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process or judgment”
Upon proof of these facts in the trial of the present case the court directed a verdict for the defendant. An affirmance of this ruling would have made it unnecessary* to go into the cross-bill, but to have reached that conclusion would have involved a decision not only of whether the purported change of possession was one prohibited by the policy, but also of whether the court was empowered to pass such an order upon a hearing for temporary alimony, that is, of whether the order was a valid and enforceable one, as must have been the case, before the policy could be held forfeited in consequence of such change of possession as resulted therefrom. Athens Mutual Ins. Co. v. Evans, 136 Ga. 584 (4) (71 S. E. 892).
These questions, the more especially the latter, were fraught with such doubt that we preferred to pass upon the cross-bill, since, according to our view, the rulings complained of therein were not only erroneous, but constituted such error as would affect the entire ease and render it unnecessary to decide the questions raised by the main bill.
Moreover, if this is a correct appraisement of the exceptions contained in the cross-bill, it is the more logical procedure to place our judgment upon that than to rule upon the questions presented by the main bill.
Judgment reversed on the cross-bill of exceptions; main bill dismissed.