139 P. 699 | Okla. | 1914
This is an original application in this court for writ of mandamus to the Hon. Hal Johnson, judge of the county court of Pottawatomie county, to compel him to certify his disqualifications to preside as judge in the matter of the estate of Enos Nichols, deceased, and in the matter of the probating of said Enos Nichols' alleged lost will. After response to the alternative writ by respondent, a referee was appointed to hear the evidence and report his findings of fact upon the question whether respondent is disqualified to sit as judge in the further proceeding of said cause or causes. After a full hearing *512 from both parties, the referee filed in this court his findings of fact, by which he finds that respondent is so biased and prejudiced against the relators who are the proponents of the alleged will of Enos Nichols, deceased, and against their rights to have said will probated as to prevent relators from having a fair and impartial hearing before said respondent upon the matter of the probate of said will, and for that reason he is disqualified to sit as judge in the matter of probating the will. But he further finds that respondent is not so biased or prejudiced against relators that they cannot have a fair and impartial hearing in all other matters connected with the administration of the estate of Enos Nichols, deceased. Neither party takes any exception to the findings of fact made by the referee; and the evidence taken before the referee has not been transcribed and is therefore not before the court.
It is the contention of relators that the fact found by the referee, to wit, that respondent is biased and prejudiced in the proceeding to probate the alleged lost will of Enos Nichols, renders him disqualified in all of the proceedings in the matter of the administration of the estate of said Enos Nichols. Counsel for respondent, on the other hand, concede respondent's disqualification to sit in the matter of probating the alleged will, but contend that the mere fact of his disqualification in that proceeding does not render respondent disqualified to sit in other matters connected with the administration of the estate. The source of respondent's bias and prejudice in the proceeding against the proponents or against their rights in the proceeding to probate the alleged lost will is not disclosed by the findings of the referee; and, as the evidence taken before the referee is not before the court, we are unable to know the source or cause of his prejudice and bias. The only fact before us relative thereto is, as found by the referee, that respondent is prejudiced and biased in the proceeding for the probate of the will, but not prejudiced in any other matters connected with the administration of the estate.
It is the contention of relators that every step in the administration of the estate, including the proceeding to probate the will, constitutes and is to be deemed one proceeding; and *513
that if a judge is disqualified to preside in any part of said proceeding, he is disqualified to preside in the entire proceeding. We find a scarcity of authorities upon this question. Graham v. People ex rel. Rutledge,
As respondent now concedes his disqualification in the proceeding to probate the will, a writ of mandamus will not issue to compel him to certify such disqualification, unless it be shown to us subsequently that respondent refuses to certify his disqualification in that proceeding.
As to all other proceedings or questions in the administration of the estate, the facts before us do not authorize the issuance of a writ of mandamus to compel respondent to certify his disqualifications relative thereto; and the writ, as to such proceedings, is denied.
All the Justices concur.