Vance v. Field

89 Ky. 178 | Ky. Ct. App. | 1889

CHIEF JUSTICE LEWIS

delivered the opinion of the court.

This is a proceeding by Burton Yance for a mandamus from this court requiring Emmet Field, Judge of the Jefferson Court of Common Pleas, to proceed, according to the rules of court and law of the land, to judgment. with an action ordinary, in which said Yance is plaintiff and the Louisville Courier-Journal Company is defendant.

It appears from the petition filed in this court, and transcript of the record accompanying it, that the action was, in December, 1886, commenced in the Louisville Law and Equity Court, and the parties had pleaded to an issue triable by jury when, February 4, 1889, the plaintiff filed with the clerk of that court the following affidavit: “The plaintiff, Burton Yance, on oath, says that the judge before whom the above-styled action is now pending will not afford him a fair and impartial trial.” But, notwithstanding the affidavit was filed and objection made to the jurisdiction of the court, the action was, February 12, 1889, submitted to a jury for trial, who, however, having failed to agree on. a verdict, were, February 15, 1889, discharged ; whereupon, on motion of the defendant, an order of court was made re-assigning the action for trial April 12, 1889; and April 11, 1889, another order was made in the same court assigning it for trial June 15, 1889.

It further appears that February 25, 1889, the plaintiff, in writing, directed the Clerk of the Jefferson Court of Common Pleas to place said action upon the docket of cases set at rules in that court, to be called March 18, 1889, which was done, and upon call of said action the plaintiff moved the last-named court to assign it to a day for trial, and to proceed with it to judgment.' But the court refused to permit made any entry of the motion, or of exceptions to its action or non-action, or to grant an appeal to this court, the reason, as appears from minutes of the proceeding then had, and as stated in the answer of the judge to the petition filed in this court, being that the action had not been transferred from the Louisville Law and Equity Court to the Jefferson Court of Common Pleas, and the latter had, consequently, no jurisdiction of it.

Section 477, Civil Code, is as follows: “The writ of mandamus, as treated of in this chapter, is an order of court of competent and original jurisdiction, commanding an executive or ministerial officer to perform an act, or omit to do an act, the performance or omission of which is enjoined by law, and it is granted on the motion of the party aggrieved, or of the Commonwealth when the public interest is affected.”

The writ of mandamus as thus defined and treated of in the Civil Code can not, in any case, be issued by this court, which, is of appellate and not original jurisdiction. But its power to issue the writ when there is a right and no other specific remedy, directed to even an inferior court of judicature within its jurisdiction, still exists as it did before the adoption of the Civil Code, and, as the language of the section plainly implies, was not intended by the Legislature to be taken away or impaired. But it is not necessary to here discuss the extent of that power or class of cases in which it may be properly exercised, because, in our opinion, the Jefferson Court of Common Pleas has no jurisdiction- of the action in question, nor legal authority to make any orders in, and, therefore, can not be required to proceed with it, for it never .has been transferred from, but is still pending in, the Louisville Law and Equity Court.

In the case of German Insurance Company v. Landram, 88 Ky., 433, it was held that an affidavit identical with the one filed by the plaintiff in the Lou • isville Law and Equity Court was not sufficient to-require the judge of a court to vacate the bench or to deprive him of the power to try the action ; that “the fact or facts upon which the belief that the judge will not give the litigant a fair trial should and must be stated in the affidavit, and they must be of such a character as should prevent the judge from properly presiding in the case.”

As the affidavit filed by the plaintiff contains simply an expression of his .belief the Judge of the Louisville Law and Equity Court will not afford him a fair and impartial trial, without a statement of any fact whatever upon which the belief is founded, he was, according to the case referred to, clearly not entitled to a transfer of the action to another conrt; and it would be unnecessary to say any thing further on the subject except that counsel, in arguing this, seem to have, to some extent, misconstrued the opinion in that case. It was not intended to there decide the judge of the court has the right to put in issue or call in question the truth of the statement of facts contained in the affidavit, but simply that there must be in the affidavit such fact or ground for the belief stated “as would prevent an official of personal integrity from presiding in the case,” or as would prevent him affording a fair and impartial trial; and when such affidavit is filed, the statement of facts it contains and of the belief founded thereon must be taken as true. Nor was it intended by the opinion to decide that a party may not file an affidavit based upon facts discovered after the issues are formed.

Wherefore, the application for the writ of mandamus is refused.