Crowley, Milner Co. v. Circuit Judge

I think plaintiffs entitled to the writ of prohibition. Judge Webster is not disqualified, and, if he were, defendant circuit judge would have no jurisdiction in the premises. The rule disqualifying a judge, whether statutory or common law, is predicated upon public policy, and, if prejudice or bias is the reason alleged, there must be prejudice or bias in fact. Such prejudice or bias can never be based solely upon a decision in the due course of judicial proceedings. This is well illustrated in State, ex rel. Timothy, v. Howse, 134 Tenn. 67,75 (183 S.W. 510). The court there stated:

"The appellant next contends that the court erred in refusing to sustain his motion that the trial judge order a transfer of the case to be tried before another judge on interchange, on the ground that the circuit judge had prejudged the case when the case was before him on the motion to suspend appellant from office.

"The fact that Judge Matthews, of the circuit court, heard the application, and suspended Howse, in no sense disqualified him to sit in the trial on the merits. The trial on the application to suspend was in this case (132 Tenn. 452 [178 S.W. 1112]) likened to interlocutory orders passed by a chancellor in an ordinary equity proceeding, and the circuit judge is no more disqualified by hearing such an application than is a chancellor who, when an application for extraordinary process, such as an injunction, is heard by him at chambers, grants the same, and the case comes on later to be heard on the merits."

Else such be the rule any dissatisfied party, upon a hearing for a temporary injunction, temporary receiver, or other interlocutory matter, can assert prejudice or bias and recuse the judge.

In Tuttle v. Tuttle, 48 N.D. 10, 27 (181 N.W. 898), it was contended:

"That Mr. Justice Robinson, who sat as a member of the court upon the hearing on the appeal and joined in the former decision, was disqualified, and should not have participated in the hearing or determination of the case. * * *

"On November 29, 1920, the appellant filed a written petition wherein attention was called to the following statement contained in the opinion prepared by Mr. Justice Robinson inTuttle v. Tuttle, 46 N.D. 79 (181 N.W. 888):

" 'It is shown that in January, 1918, defendant commenced an action against the plaintiff in the district court of Kidder county to recover about $480,000 ($300,000, with interest from January, 1909). The basis of the action is that in the divorce suit she should have recovered at least $300,000. Such an action, in the opinion of the writer, taken in connection with the proceedings in this case, gives to the whole a color of blackmail. It shows an attempt to extort money from the plaintiff, to force him to buy his peace by harassing him with vexatious, groundless, and expensive litigation. The judgment in the case was given after a full and fair hearing. It imports absolute validity and verity. It is not subject to a collateral attack, nor is the plaintiff, in the opinion of the writer, subject to a suit for obtaining the judgment. Hence, no party has a right to commence or prosecute such an action.'

"And it was contended that this evidenced such bias and prejudice on the part of Mr. Justice Robinson in favor of the respondent and against the appellant as to disqualify him from sitting in the case."

The court stated (p. 31):

"There was, and is, no contention that Justice Robinson had even the remotest interest in the lawsuit, or that he was related to or even acquainted with the parties. The mere fact that a judge entertains, or even has expressed, an opinion upon some question of law, does not disqualify him on the ground of bias or prejudice. If it did, then a trial judge ought not to sit on the hearing of a motion for a new trial based upon errors of law committed during the course of the trial, and the members of this court ought not to sit in the consideration of petitions for rehearings or upon rearguments of causes. 'There is no rule nor principle,' said the supreme court of Vermont (Martin v. Curtis, 68 Vt. 397 [35 A. 334]), 'that disqualifies the judge of the court from sitting in different causes in which the same legal rules and questions of fact, or either of them, are presented for consideration. In many instances, causes involving the same questions are tried by the same judges.' "

The writ must issue for the reason that the judge of the Macomb circuit has no jurisdiction in the premises. In the Wayne circuit there are 14 judges, and, unless all are disqualified, application may not be made to the judge of another circuit for the transfer of a cause pending in the Wayne circuit. It is true that the statute, cited by Mr. Justice BIRD, and relied on by defendant, speaks of suits in which the judge for any reason would be excluded from sitting at the trial. But suppose the statute read judges instead of judge. Then what? Would not the judges have to be disqualified in order to send the question of transfer to the judge of another circuit? Certainly. The statute may and ought to be so read. While the statute speaks in the singular number, the plural is also included by virtue of a general statute to be employed in the construction of all statutes in this State. We refer to 1 Comp. Laws 1915, § 64, which provides:

"Every word importing the singular number only, may extend to and embrace the plural number." * * *

This statute is for use and has been employed to avert ridiculous situations. Smith v. Carlow, 114 Mich. 67;Schulz v. Brohl, 116 Mich. 603. The statute invoked by defendant must be construed as not giving the Macomb circuit judge power to act thereunder unless the judges of the Wayne circuit are all disqualified. Of course, no such claim is made. The case of Grostick v. Railroad Co., 96 Mich. 495, is not analogous.

SHARPE, C.J., and SNOW, STEERE, FELLOWS, and CLARK, JJ., concurred with WIEST, J.