84 W. Va. 312 | W. Va. | 1919
This is a proceeding by mandamus, pursuant to section 11 of .chapter 112 of the Code, to remove respondent as special judge, .elected to preside at the trial of the case of Nannie J. Curry and George E. Curry against the Monongahela Valley Traction Company, pending in the circuit court of Wood County, and who took the oath of office prescribed and entered upon-the discharge of his duties.
The grounds averred in the petition and alternative writ for the removal of respondent are not those which the statute declares shall render'him ineligible, but other grounds which the relator conceives constitutes good cause for his removal. The statute prescribes that, “The judge so elected or agreed upon shall, before proceeding to act, take an oath that he will faithfully and impartially perform the duties of a judge of such court so long as he shall continue to act as such; and
But certainly grounds other than those specified in this statute might exist or occur calling for the removal of a special judge, and warranting a writ of mandamus for that purpose. The only other grounds averred are: First, that respondent is attorney for the plaintiff in the suit of W. A. Lowthér against relator, pending in the same court and set for trial on May 6, 1919, and, that the case in which he was so elected to preside as special judge was called for trial at the same term and before the same jury then in attendance upon the court, and trial thereof was being insisted upon by him, and wherefore, it is argued, if a juror, by reason of his interest in the suit in which he is counsel, he would be disqualified. ■ Second, that when the case of Lowther against relator was called and motion was made by relator for a continuance on the ground of the absence and illness of relator’s counsel in charge of the case; respondent, evidencing his bias and prejudice against relator, and his disqualification to preside at the trial of the case in which he was elected special' judge, arose to oppose the motion, and addressed the
' The question is thus presented: Do these grounds or any of them call for the removal of respondent from the office of special judge? The sufficiency thereof is challenged by respondent’s demurrer to, and motion to quash, the alternative writ, and. also by his return thereto. Counsel for relator, conceive that under the statute and upon the facts alleged,
The only basis for removal of respondent to be extracted from the averments of the writ is possible prejudice against the relator because of the relationship of attorney and client in another suit in no way connected with the suit in which he was elected special judge, or induced by altercations in court between him and counsel or a representative of the relator. But do these facts sufficiently evidence prejudice disqualify
of the disqualification is that personal bias or prejudice renders the judge unable to exercise his functions impartially in the particular case, and therefore it must be shown that he is biased against, or entertains ill will or hostility toward, the defendant of such a character as might prevent him from
The record here discloses nothing more than prejudice or ill will toward an agent of the relator; it is not shown' to extend to the relator or its attorneys in the case. If the respondent is conscious of such bias or prejudice against the relator’s agent as to disqualify him to preside and do justice to the defendant in the action, he ought to, and no doubt will, decline to preside at the trial. But if good grounds, we do not think a ease of bias or prejudice is made out against respondent, and the peremptory writ must be denied.
Writ denied.