Pegues v. Baker , 110 Ala. 251 ( 1895 )

BRICKELL, C. J.

The statute, (Code § 3303), exempts a defendant from suit by ordinary civil process before a justice of the peace, without die precinct of his residence, or of that in which the debt was created, or the cause of action arose, and declares that a suit brought contrary to its provisions, must on motion be dismissed by the justice. But if there is no justice, or notary public having the jurisdiction of a justice, within the precinct of the defendant’s residence, or if the justice is from any cause incompetent, the summons may issue and the cause be tried by the justice of an adjoining precinct . — Code, § 3305.

In this case, there was but a single justice in the precinct of the residence of the defendant, and he had married a first cousin of the defendant, but the wife had been dead for many years, leaving children surviving. The question is, whether the justice was incompetent to try the cause. The statute declares : “No judge of any court, chancellor, county commissioner, or justice, must sit in any cause or proceeding in which he is interested, or related to either party within the fourth degree of consanguinity or affinity,” &c. — Code, § 647. The disqualifications which the statute declares are not exclusive ; there are disqualifications which the common law imposes, remaining of full force.—Gill v. State, 61 Ala. 169; Medlin v. Taylor, 101 Ala. 239. A judge or justice m ay be without pecuniary interest which will be affected by the- result of a suit pending before him, and yet he may be a party to, or have an interest in, a suit involving the same questions upon which he is required to pass judgment, and the bias in favor of the one.party..or the other naturally resulting, is deemed by the common law a disqualification.—Medlin v. Taylor, supra; Moses v. Julian, 45 N. H. 52, s. c. 84 Am. Dec. 114. The death of the wife may have dissolved the relation by affinity between the defendant and the justice, and if there were not children of the marriage surviving, the justice would not be incompetent. But as there are children surviving, the disqualification continues, for, as is said by Lord Coke, “the law presumeth that one kinsman doth favor another more than a stranger. ’ ’—Jaques v. Commonwealth, 10 Gratt. 690; Dearmand v. Dearmand, 10 Ind. 191; Commonwealth v. Brown, (note), 9 Am. St. 755. We are of opinion the justice was not competent to sit in this cause, and of consequence that there was error in sustaining the motion to dismiss.

We are not averse to this conclusion.. Judicial officers should not be compelled to try causes in which they may have the bias.of pecuniary or other interest, or in which they are not free from the bias of relationship. If compelled to the one or the other, public confidence in the purity of the administration of justice will be lessened, and judges will become the objects of suspicion and distrust.

The judgment is reversed, and thé cause remanded.