McConnell v. Goodwin , 189 Ala. 390 ( 1914 )

SOMERVILLE, J.

The writ of mandamus and in-

cidental prohibition, being peremptory in character and issued in vacation, was void, and properly quashed.—Ex parte Ray, 45 Ala. 15; Ex parte Boothe, 64 Ala. 312-319. The fiat under which the writ was issued was void for the same reason, and was bad also, in that it left the selection of the “appropriate 'writ”. to the discretion of the circuit clerk, a judicial authority which could not be thus delegated.

It remains only to determine whether the court properly refused to issue a new writ and properly dismissed the petition. Where a judge is incompetent, whether on statutory or common-law grounds, to try a cause pending before him, mandamus is the proper remedy to compel him to certify his incompetency, as a preliminary to the selection of a qualified judge in his stead.—State ex rel, Smith v. Pitts, 139 Ala. 152, 36 South. 20; Bryce v. Burke, 172 Ala. 219, 55 South. 635.

We are of the opinion that a probate judge is not disqualified for the trial of a cause in which the county, of which he is judge, is a party litigant. As said in Ex parte State Bar Ass'n, 92 Ala. 112, 118, 8 South. 768, 770, “the interest which will disqualify must be a pecuniary one, or one affecting the individual rights of the judge. The statute — section 3680, Code 1907— expressly gives jurisdiction to the probate court in proceedings by tbe county for condemning land to public uses; and this jurisdiction-is deliberately conferred in full view of the fact that the probate judge is by law an ex officio member of the court of county commissioners, by whose authority alone such proceedings • can be initiated under the general statutes.

Under the local act regulating public roads in Fayette county (Local Sess. Acts 1911, p. 240), jurisdiction thereof is vested in a road commission, of which the probate judge is ex officio a member, and also its clerk. It is argued for the appellant that, since as such member he advises upon and consents to the proceed-ing by the supervisor, he is in effect reviewing his own previous action; but we think this argument is without substantial merit, for it would be wholly unreasonable to suppose the existence of disqualifying prejudice on the part of the judge merely because of his previous official assent to the proceeding.—Fulton v. Longshore, 156 Ala. 611, 46 South. 989, 19 L. R. A. (N. S.) 602. The result of this proceeeding does not even remotely or contingently affect any interest that is personal to the judge of probate. This whs evidently the view of the lawmakers, and the vesting of jurisdiction in the probate court to try the proceeding was of course within the power of the Legislature.

Moreover, in the absence of a statute to the contrary, a judge is not disqualified for reviewing his own former judicial acts.—7 Cyc. 588, and cases cited.

It is also suggested that, since as clerk of the road commission the probate judge may have aided in the preparation of “papers, documents or instruments” relating thereto, he is rendered incompetent by the provisions of section 5423 of the Code. The answer to this contention is that it does not appear -that there are any such writings as to which a controversy is to be heard or determined by tbe judge, and, further, the statute expressly excepts from the inhibition any instrumeent “which by law is required to be prepared by such judge.” Obviously, this statute has no bearing on the case.

In this proceeding the only party plaintiff is the county, and no individual other than the defendant has any direct interest in the result. The fact that near relatives of the probate judge are promoting the establishment and construction of the road by contributions of land and labor does not render him incompetent to conduct the proceeding. They are not parties to the record, nor are they parties in interest in any legal sense. Their interest is but general and remote, and such as pertains to the general public, who may be expected to use the road as a highway.—See Sauls v. Freeman, 24 Fla. 209, 4 South. 525, 12 Am. St. Rep. 190, and Foreman v. Marianna, 43 Ark. 324.

Our conclusion is that the petition exhibited no sufficient ground for the issuance of the writ prayed for, and that it was properly dismissed. The judgment is therefore affirmed.

Affirmed.

■ Anderson, C. J., and Mayfield and deGraejsnried, JJ., concur.