60 Kan. 446 | Kan. | 1899
The opinion of the court was delivered by
This proceeding involves the validity of an order of revivor, and the subsequent action of the district court in refusing to set aside the order of revivor because the judge who made the order was disqualified to act in the case.
It appears that on March 8, 1892, R. J. Berkley recovered a judgment against Tootle, Hosea & Co. and other defendants for the sum of $2000, together with interest that had accrued for a period of about five years. In October, 1897, a motion was made to revive this judgment, it being alleged that it was wholly unsatisfied and had become dormant. The defendants being non-residents of the state, notice of the hearing of the motion was given by publication, and on December 3, 1897, a hearing was had before Judge
None of the essential facts as to the disqualification of the judge is in dispute, and that he was disqualified is hardly open to controversy. Our statute expressly provides that a judge who is “interested or
In the present case the judge was not only of counsel in obtaining the judgment revived, but it appears that he had a .direct and pecuniary interest in the revivor. The fee earned in procuring the judgment was unpaid, and its collection, it seems; largely depended upon the existence of the judgment. The claim or lien for attorneys’ fees could not be enforced against a dormant judgment, but might- be if the judgment were revived. It is true the amount of the fee was not large, but the law does not undertake to
It is generally held that the rule of disqualification should not have a narrow or technical construction, but should rather be broadly applied in all cases where one is called upon to act judicially or to decide between conflicting rights. There was no necessity to trench upon the rule in this case as ample provision is made by statute for the hearing of the matter before a judge who is qualified; and certainly it cannot be claimed that a proceeding to revive a judgment is a mere formality, or so inconsequential as to except, the case from the operation of the rule. No improper motive is imputed to the judge in reviving the judg
The rulings of the trial court will be reversed and the cause remanded for further proceedings.