Walker v. Coleman

55 Kan. 381 | Kan. | 1895

The opinion of the court was delivered by

MartiN, C. J. :

I. The application to remove the cause to the United States circuit court for the district of Kansas was properly overruled. The mere fact that the defendant was a United States marshal, justifying under a writ of attachment issued from the federal court, did not confer upon him any right of removal under the several acts of congress relating to that subject. The order of attachment was issued under the laws of the state of Kansas, the federal courts having concurrent jurisdiction with the state courts in certain cases ; but no federal question could arise upon the pleadings nor upon the petition for removal, and it was not claimed that the parties to this suit were citizens of different states.

II. The record discloses that the attorneys tried the case with reasonable fairness and courtesy as between themselves, and we see little or no cause for the apparent exasperation of the trial judge against the attorneys for the defendant, and particularly against .Mr. Solomon. Mr. Adams took the leading part on that side of the case, and Mr. Solomon had little to say. He resided in a distant place, and the trial judge seems to have considered him in. the light of an intruder. Presumably neither Mr. Solomon nor Mr. Adams had any interest in the' result of the suit, except such as properly arises from the relation of attorney and client. The rights of the parties to the action were the proper subject of consideration by the court, and those rights ought not to be prejudiced by any ill-feelings of the trial judge against counsel. In the case of Cronkhite v. Dickerson, 51 Mich. 177, it is held that “judges must take great care to say nothing in the hearing of the jurors, while a case is progressing, which can possibly be construed to the prejudice of either party,” and the judgment was reversed because of an unfavorable suggestion of the trial judge, the reviewing court saying, “it is impossible to tell to what extent the defendant’s rights may haye been prejudiced by the remarks.” And in Wheeler v. Wallace, 53 Mich. 355, 356, and 361, it was decided that “error will lie on the demeanor of the trial judge, if it be such as to prevent a fair trial, or prejudice the case upon the facts before the jury,” and that it is improper for him to reflect upon the capacity and memory of counsel to whom clients haye intrusted their interests, and the judgment was reversed for this cause among others. “ Irregularity in the proceedings of the court ... or abuse of discretion by which the party was prevented from having a fair trial,” is one of the grounds specified in § 306 of the code for a new trial, and' this was assigned in the motion of the defendant for a new trial, and is renewed in the petition in error here. An examination of the record leads us to the conclusion that the defendant was probably prejudiced by the conduct and bearing of the trial judge toward counsel. We. think that some of the answers of the jury to.particular questions of fact are against the evidence and too favorable to the plaintiffs, and this indicates that the jury may have been influenced unfavorably to the defendant by the bearing of the trial judge and his prejudice against counsel.

The judgment will be reversed, and the cause remanded to the district court of Sedgwick county for a new trial.

All the Justices concurring.