252 Mo. 334 | Mo. | 1913
Original action in prohibition. The facts may be thus summarized: On April 5, 1905, there was pending in the circuit court of St. Louis City an action wherein Elizabeth O. O’Hara, executrix of the estate of Henry O’Hara, was plaintiff, and the firm of Berthold & Jennings were defendants. the suit and a counterclaim filed therein by defendants (both in large sums, requiring an extensive accounting between the parties) rendered the case one for compulsory reference. This action fell by allotment to Division No. 6 of the St. Louis City Circuit Court over which respondent has presided since January 1, 1913. On April 5, 1905, respondent’s predecessor appointed relator, Wright, as referee in said cause by the usual order in such cases made, and Wright qualified and proceeded to act, but to what extent does not appear in the record before us in the instant case. It does appear that a previous referee bad taken, all'the evidence in the case, and Wright was appointed on the
On December 31, 1912, the referee Wright filed his written resignation in said cause, assigning as one of his reasons therefor that he was biased and prejudiced in the cause as to the plaintiff therein. Other reasons we omit. January 2, 1913, the defendants in the cause pending nisi filed their application for a rule upon the referee to report on said cause. This application on January 24, 1912, the court sustained in a summary way and directed the referee to report forthwith his actions and proceedings in said cause. January 30, 1912, the plaintiff by proper motion and application asked the court to vacate its order of January 24, 1912, and either accept the resignation of the referee, or remove him from office, because of his bias and prejudice against her, and appoint another referee in said cause. This application, which was duly verified by oath, contains among other things the following :
“That said Joseph A. Wright, the present referee, is prejudiced and biased against plaintiff in this cause, and has expressed a prejudice and bias against plain tiff in this cause, and consequently is not a proper person to act as referee herein, and is not competent to render a report on the merits of the cause.”
This application, verified as aforesaid by the affidavit of one of plaintiff’s counsel, was summarily overruled, and the referee left to make immediate report or take other steps. The referee in this situation applied to this court for a writ of prohibition, and an
I. I am impressed that both parties to this action have an erroneous view of the law of the case. Be ■
“A referee is a person to whom a cause pending in court is referred by the court, to take testimony, hear the parties, and report thereon to the court, and upon whose report, if confirmed, judgment is entered.”
Another authority, 34 Cyc. 774, thus defines “reference” and “referee:”
“A reference is- a sending of a pending cause or some question therein by the court in which it is pending to a private person to hear and determine the cause or some question therein or to take evidence and report the same, with or without his opinion thereon, to the court. Before there can be a reference there must*339 be an action pending, and generally only matters connected with, the pending snit can be referred. The person to whom the reference is made is usually termed a referee; but various other names are given to such persons in different jurisdictions, there sometimes being, however, a difference between a referee and such other person. The terms auditor, commissioner, arbitrator, examiner, assessor, etc., are often used. A referee is to be distinguished from a master who is appointed only in equity suits pursuant to the old equity practice, although in some jurisdictions a referee in an equity suit appointed pursuant to statute is now termed a referee rather than a master. In so far as such officers perform the duties of a referee, the difference in title may be disregarded' and the title of referee is therefore used generically throughout this article except where there is a difference of importance between the particular officer and a referee.”
No definition brings a referee within the class of officers held in view by the constitutional provision, supra. On the other hand respondent apparently denies the right to resign in toto. To our mind the true rule lies between the two extremes. I do not believe that a referee should, be permitted to resign for mere captious or capricious reasons, but that there is a right to resign for good and sufficient reasons, I. have no doubt. The right to resign is in my judgment a qualified, rather than absolute one. In other words it is a right dependent upon the the reasons for its exercise. If the reason assigned is good and valid the right is there, but not so if the reasons are otherwise. The right of the court to remove a referee for good cause, and the right of the referee to resign for good cause, should go hand in hand. If the one is recognized, the other should be recognized. The thing which would authorize the court to remove the referee should authorize the referee to resign, and force the acceptance of such resignation, if acceptance be necessary.
“In 34 Cyc. 809, the law is thus stated:
“A referee is subject to removal by the court, even where appointed by agreement of the parties, but only for good and substantial reasons. For instance the referee may be removed because of prejudice or bias, or misconduct, or by the expression of an opinion on the facts before the hearing.”
In Bowen v. Steere, Executor, 6 R. I. 1. c. 253, Ames, C. J., says:
“The motion to discharge the rule altogether, upon the ground that two of the referees after their appointment, and before they had heard the case of the claimant, expressed opinions unfavorable to it, demands, on account of the nature of the cause alleged, the careful consideration of the court. Whilst in mod*341 ern times courts have been more liberal in overlooking bonest errors in referees and arbitrators, and mere defects of form in their reports and awards, they have been more strict in requiring from them the integrity and impartiality which belong to the judicial character. [Cleland v. Hedly, 5 R. I. 163; Strong v. Strong, 9 Cush. 573.] The partiality betrayed by the expression of an opinion by a referee for or against the case of either party before he has heard it, would, unless the parties had agreed to. waive impartiality in the tribunal selected by them, be a good cause to invalidate his report, and to discharge the rule which appointed him. Under such circumstances the court would be bound to presume, notwithstanding the referee swore that his prejudice did not sway him,'that the report was not the result of his fair and deliberate judgment, but of preconceptions, which placed him beyond the influence, of both law and fact. [Fox v. Hazelton, 10 Pick. 275; Boston Water Power Co. v. Gray, 6 Met. 169.]”
So in the case at bar, what court could say that a fair report had been given by the biased and prejudiced mind of the referee. This, too, in the face of admitted' bias and prejudice.
In the case of Goldberger v. Railroad, 23 N. Y. Supp. 1. c. 178, it is said:
“Referees are judicial officers, charged with a responsible trust. They take the place of the jury as well as of the court, and their finding upon the facts is generally accepted as conclusive. Like jurors or arbitrators, they should be persons entirely unbiased and indifferent between the parties, or their competency to act may in like manner be challenged, and any secret understanding as to receiving fees in advance from one party (Russ. Arb. 129; Morse Arb; Redm. Arb. 93) or any other act of misconduct, calculated to bias or influence any one of the referees in his conduct, or to prejudice -either party, is generally re*342 garded as ample cause for removal, and for setting aside the award when made. For example of the stringency of this rule, see Forrest v. Forrest, 3 Bosw. 650; Dorlon v. Lewis, 9 How. Pr. 9; Yale v. Gwinits, 4 How. Pr. 253; Livermore v. Bainbridge, 44 How. Pr. 362, affirmed 47 How. Pr. 354; Marie v. Garrison, 1 How. Pr. (N. S.) 32; Devlin v. Mayor, 7 Daly, 466; Carroll v. Lufkins, 29 Hun, 17; Burrows v. Dickinson, 35 Hun, 492; O’Brien v. Long, 49 Hun, 80, 1 N. Y. Supp. 695. Misconduct or bias upon the part of referees may he of two kinds — either positive, as by some act that can he directly proved, or inferential, where the circumstances so strongly point to undue influence that the presumption alone will be taken as conclusive.”
In the case at bar we have confessed bias toward one of the parties upon the part of the referee. The good faith of this confession is not questioned and cannot well he questioned. To force a biased and prejudiced mind to try a cause would he a travesty upon justice. Other cases as strongly recognizing the right of the court to remove a referee for bias and prejudice will be found cited in 34 Cyc. supra, and we need not go further.
As above indicated “the reason assigned by this referee is the very best of all reasons.” The law contemplates a fair and impartial trial of all issues before a fair and impartial tribunal. Jurisprudence despises bias and prejudice in the administration of justice. Bias and prejudice saps the very life blood of even-handed justkié. For that reason we exclude proffered jurors from service. For that reason circuit judges are temporarily dethroned and new judges called to try the cases. In fact,.bias and prejudice are shunned at every step of legal proceedings, and rightfully so. Now to the case at bar. The referee openly admits his bias and prejudice as against one of the parties litigant and he asks the court to relieve him of
II. A referee is but an arm of the court, created by the court, to do things which the court could itself
“A judge may take judicial notice of matters affecting his qualification and refuse to act if disqualified within his own knowledge and without any extrinsic evidence' of such disqualification; and it is not only the right but the duty of a judge to refuse to preside at the trial of a case in which he is disqualified, without regard to the manner of receiving information of his disqualification.”
So in the case at bar, if the referee, acting in good faith (and there is nothing to the contrary in this record) discovered that he was prejudiced against one of the parties, he had the right to resign in the interest of justice and fair play. In some States the final report of referees have been set aside on the ground of bias and prejudice upon the part of the referee.
We have in the case at bar the solemn' admission of his bias and prejudice. We have also an affidavit to the same fact, and yet without further information the trial judge summarily directs the referee to proceed to determine the issue between the parties. This should not be — in the interest of jurisprudence. A referee should have the right to resign for the same reasons and upon the same grounds, as would authorize the court to depose him'. That such grounds exist in this case is not denied by the respondent’s return. With the trial judge it seems to have béen a mere question of the right of a referee to resign under any circumstances and he adjudged that the referee had no such right. We hold that where bias and prejudice is admitted, as in this case, the referee has the right to resign, and the trial court exceeded his authority in directing the referee to proceed further with the case. Let the writ of prohibition go. Cost to be taxed to relator.