Bliss v. Caille Bros.

Ostrander, J.

(after stating the facts). We regard the first assignment of error sufficient in form to raise the question of the disqualification of the judge and the consequent invalidity of the judgments. It is contended that we are not at liberty to consider this question. The motions which have been referred to were made November 28, December 8, and December 15, 1906, were heard December 29, 1906, and determined January 21, 1907, an opinion being filed. The writ of error was issued February 20, 1907, and was returnable March 29, 1907. The suggestion filed in this court is dated April 6, 1907, and the affidavits in support thereof were made March 26, 1907, and April 5, 1907, respectively. Two of the deponents, garnishee defendants, who join in an affidavit, say that about February 1, 1907, they first heard a rumor to the effect that Judge Gage was related by marriage to Aaron T. Bliss and Allaseba M. Bliss, and was disqualified, but were unable to obtain positive information until on or about March 26, 1907. One of the persons from whom they learned the fact óf the said relationship was Silas W. Tyler, who made the other affidavit, was one of the defendants in the original suit, and is father of the judgment debtor, who avers that on March 26, 1907, he learned the fact from Mrs. Bliss. The fact upon which disqualification is predicated was not then discovered or suspected by appellants until after the entry of the orders denying their motions. The earliest opportunity, therefore, for presenting the point was after the last action taken by the judge and any motion or suggestion thereafter made in the court below could have resulted in nothing more than a confirmation of the alleged facts hy admission on the part of the judge, or a denial of the facts or of the legal consequences asserted. Judgments and orders made by a disqualified judge are not voidable merely, but are void. They may be collaterally attacked and the objection, if not taken before decision is rendered, is available in the appellate court. See Teller v. Wetherell, 6 Mich. 46; Peninsular R. Co. v. Howard, 20 Mich. 18; Horton v. Howard, 79 Mich. 642; Shannon v. Smith, 31 Mich. 451; Post v. Black, 5 Denio (N. Y.), 66; Dimes v. Grand Junction Canal, 3 H. of L. Cas. 759; Mercers, etc., Co. of Chester v. Bowker, 1 Strange, 639; Cooley on Constitutional Limitations (7th Ed.), p. 595; 23 Cyc. p. 583; 11 Enc. PI. & Pr. p. 781 et seq., and notes. We are of opinion that the point is before us for decision.

Was the judge disqualified by reason of his relationship to the plaintiff ? A principal, challenge to a juror, at the common law, was one where the cause assigned carried with it prima facie evidence either of malice or of favor to one of the parties. There were, also, challenges to the favor, which depended upon some asserted or disclosed circumstances of suspicion, the validity of which was determined by triers who found whether the juror was or was not indifferent. Among the. principal challenges recognized was one predicated upon the relationship of the juror to a party. Blackstone says a juror was disqualified who was of kin to either party within the ninth degree. Chief Justice Champlin so stated the rule (obiter as to the degree), in Horton v. Howard, supra. Blackstone also treats consanguinity and kindred as terms to be defined alike. Book 2, chap. 14. Unlike the common law, our statute (3 Comp. Laws, § 10238) provides for peremptory challenges and it has been held that, therefore, the distinction between challenges for principal cause and to the favor is practically abolished. Holt v. People, 13 Mich. 226. All challenges are for cause, and if the facts upon which the challenge is based are undisputed the decision of the question is one of law, and open to review on exceptions. Holt v. People, supra. We have no statute presumptions of disqualification of jurors on the ground of relationship, and are left to inquire whether among the rules of the common law in force in this State there are any for determining the question. presented as. one of law. The cases of Hasceig v. Tripp, 20 Mich. 216; People v. Harding, 53 Mich. 48; Horton v. Howard, supra, refer to the common law for rules of decision without, however, stating a rule. And in the first and last of these cases the relationship alleged was one of blood.

Our statute disqualifies a judge from sitting in a case in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties. 1 Comp. Laws, § 1109. Judge Gage was not related by consanguinity to Aaron T. Bliss and is not so related to Mrs. Bliss. It is unnecessary to do more than-refer briefly to the origin and history of the legal doctrine of affinity. It grew out of canonical maxim that sexual union makes man and woman one flesh. The application of the maxim, especially as affecting marriage, divorce, and the legitimacy of children, gave rise to rules, the intricacy of which is proof of the amazing ingenuity of the churchmen. The rules varied with different periods. The temporal courts were sometimes recalcitrant in adopting those which were formulated, and it is not always easy to determine the degrees of relationship established by these rules within which, at a particular time, marriage was prohibited. But the notion obtained, to some extent, that relationship other than by blood might be so intimate that of itself it ought to prevent officers and jurors from acting in matters in which their relatives were interested. Courts were called upon frequently to determine whether the challenge of a juror or of an array of jurors was a principal challenge or one to the favor, and in so doing apparently introduced some confusion into the law as they recognized or failed to recognize some canonical rule of affinity. Since our statute, in terms, recognizes the doctrine and does no more, we must determine how much of it, applicable to a case like the one before us, survives, in doing which we are bound by the rule of no period and by the determination of no court. We are bound to consider and give effect to the changes in the common law made by our statutes in respect to the relations with which the doctrine was intimately associated. We should keep in mind, also, the fact that the use of the doctrine attempted is for the purpose only of determining whether in support of a high public policy affecting the administration of the law a juror or a judge should be regarded as indifferent or as biased.

An examination of authorities has led to the conclusion that the doctrine of affinity relationship should be limited by the following rule: Affinity is the relation existing in consequence of marriage between each of the married persons and the blood relatives of the other, ánd the degrees of affinity are computed in the same way as those of consanguinity or kindred. A husband is related, by affinity, to all the blood relatives of his wife, and the wife is related, by affinity, to all the blood relatives of the husband. See Bouvier Law Dictionary, p. 113; 1 Am. & Eng. Enc. Law (3d Ed.), p. 911; 3 Cyc. p. 38; 33 Cyc. p. 583; 34 Cyc. p. 374; 1 Words and Phrases Judicially Defined, p. 345. It is true our statute was adopted from the State of New York, and that when adopted here it had received j udicial interpretation by the courts of that State (Foot v. Morgan, 1 Hill [N. Y.], 654; Paddock v. Wells, 3 Barb. Ch. [N. Y.] 333), and that in the last-mentioned case, at least, á different rule was stated obiter. But the judicial interpretation which can be said to be binding upon the courts of this State extended only to the point of determining that the statute must be aided by the common law. The particular rule of common law adopted and in force in this State is not to be determined authoritatively by courts of another State. The rule above stated is the rule of decision in both of the New York cases above cited, as well as in Higbe v. Leonard, 1 Denio (N. Y.), 186, decided in 1845. The other and further rule stated, obiter, in Paddock v. Wells, to the effect that ‘ ‘ relationship by affinity may also exist between the husband and one who is connected by marriage with a blood relative of the wife,” is based upon very remote, and is opposed to the weight of modern, authority. We must decline to hold that the fact that two men, unrelated, marry wives who are second cousins, establishes between them a relation by affinity. ¹

. We conclude, therefore, that Judge Gage is related by-affinity to Mrs. Bliss; that he was not related by affinity to Aaron T. Bliss. He was not disqualified to hear and determine the causes or to enter the judgments sought to be vacated. It is conceded that he was disqualified to hear and determine the motions to vacate the judgments unless Mrs. Bliss is regarded as a nominal party, unless, also, an exception of necessity must be made because of the statute (1 Comp. Laws, §§ 276-284), which provides, among other things, that in Saginaw county—

“All cases made, motions for new trials and bills of exceptions and settlement of cases for review, * * * shall be heard, settled and certified by the judge before whom the trial or hearing was had.”

Mrs. Bliss is not a nominal party. She is beneficially interested in the estate of her husband as a preferred and as a residuary legatee. 23 Cyc. pp. 584, 585. It is Aell established that the rule of disqualification of judges must yield to the demands of necessity, as, for example, in cases where applied it would destroy the only tribunal in which relief could be had. See the cases collected in 23 Cyc. p. 581, note 76. The statute recognizes the possibility of the absence, illness, “or inability from other cause” of the judges, preventing the one to whom business is assigned from acting. See sections 281, 283. It would not be claimed that the death of one of the judges would prevent the settlement of exceptions, etc., in cases which had been tried before him. This statute and the one disqualifying judges must be read together, and so read may both of them be given effect. It results that the first assignment of error must, to the extent indicated, be sustained. As the judgments are not attacked for anything appearing of record in the matters, in which they were rendered, but only by matters brought upon the record with the motions to vacate, and as the only other error assigned is that the court, in consideration of such matters of fact, should have vacated the judgments, there is no further question for our consideration. An order will be entered setting aside the orders overruling the motions of appellants, and reinstating the same for argument, with costs.

Grant, Blair, Montgomery, and Hooker, JJ., ' concurred.