Judges: PER CURIAM. —
Attorneys: Shutts Bowen and Evans Mershon, for Appellant;
Robert H. Anderson, for Appellee.
ON PETITION FOR REHEARING. Opinion Filed November 25, 1926.
1. Under the statute, when the required affidavits and certificate relative to the prejudice of a judge in a cause, are made and filed, "such judge shall proceed no further therein, but another judge shall be designated in the manner prescribed by the law" as in cases "where the presiding judge is disqualified." The proper practice is for the challenged judge, upon due application, to state on the record his statutory disqualification, when the requisite affidavits and certificate are duly made and filed.
2. The challenged judge has a legal right to determine whether all the prescribed affidavits and the required certificate relative to his asserted prejudice, severally containing matters of the nature required as a prerequisite to the operation of the statute, have been made and filed so as to invoke the operation of the statute to disqualify him; and if an order be made thereon is not authorized by the statute or is otherwise erroneous, it may be reversed and remedied on appeal duly taken.
3. Where the jurisdiction of a judge of one circuit depends upon the prior disqualification of the judge of another circuit, the former is ordinarily without authority to adjudicate the disqualification of the latter.
4. Where an attempt is made under the statute to disqualify the judge of a circuit in which a cause originates or is pending, and that judge enters an order that he is nevertheless not disqualified in the cause, the statute does not authorize
the judge of another circuit, whose jurisdiction in the cause depends upon the prior legal disqualification of the first judge, to peremptorily assume jurisdiction of the cause notwithstanding the order of the first judge, even though it might appear of record that the first judge erred in holding himself not disqualified and his order would be reversed on appeal therefrom.
Rehearing denied.Shutts Bowen and Evans Mershon, for Appellants;
Robert H. Anderson, for Appellee.
Filed: Jul. 12, 1927
Latest Update: Mar. 02, 2020
Summary: This appeal is from several orders. Because, however, of the conclusion reached, reference to other than the first of them will be unnecessary. The Judge of the Circuit Court of the Fifteenth Judicial Circuit entered an order fixing the amount and allowing compensation to the Receiver for services rendered by him. This order is assigned as error. Decision on this assignment is decisive of the appeal. The case was instituted and prosecuted to final decree in the Circuit Court of the Eleventh Judi
Summary: This appeal is from several orders. Because, however, of the conclusion reached, reference to other than the first of them will be unnecessary. The Judge of the Circuit Court of the Fifteenth Judicial Circuit entered an order fixing the amount and allowing compensation to the Receiver for services rendered by him. This order is assigned as error. Decision on this assignment is decisive of the appeal. The case was instituted and prosecuted to final decree in the Circuit Court of the Eleventh Judic..
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Under the statute, when the required affidavit and certificate relative to the prejudice of a judge in a cause, are made and filed, "such judge shall proceed no further therein but another judge shall be designated in the manner prescribed by the law" as in cases "where the presiding judge is disqualified." The proper practice is for the challenged judge, upon due application, to state on the record his statutory disqualification, when the requisite affidavits andcertificate are duly made and filed. If all the affidavits and the certificate as required are made and filed and severally contain matters of the nature prescribed by the statute, an order or other record notation of the statutory disqualification should be made. The challenged judge has a legal right to determine whether all the prescribed affidavits and the
required certificate relative to his asserted prejudice severally containing matters of the nature required as a prerequisite to the operation of the statute, have been made and filed so as to invoke the operation of the statute to disqualify him; and if an order be made thereon is not authorized by the statute or is otherwise erroneous, it may be reversed and remedied on appeal duly taken.
In this case the challenged judge denied and overruled the "application for disqualification;" and it must be assumed that he did so because he considered the affidavit and certificate to be not of the character and nature required to invoke the operation of the statute to disqualify him.
Whatever may have been Judge Atkinson's reason for making the order denying the "application for disqualification," a judge of another circuit is not authorized to review the order made and to adjudicate the disqualification of the other Circuit Judge. This is not a case in which jurisdiction initiated with Judge Davis and wherein the order made by Judge Atkinson is assailed as being void. The jurisdiction of Judge Davis is dependent upon the prior legal disqualification of Judge Atkinson under the statute. Whether Judge Atkinson is in law disqualified or not, another Circuit Judge is on this record without authority to decide the matter and in effect to reverse the order made by Judge Atkinson.
Where an attempt is made pursuant to Section 2674, Revised General Statutes, 1920, to disqualify the judge of the circuit in which a cause originated and is pending, and that judge enters an order that he is nevertheless not disqualified in such cause, the provisions of Section 2528, Revised General Statutes, 1920, do not authorize the judge of another circuit, whose jurisdiction in the cause depends upon the prior legal disqualification of the first judge, to
peremptorily assume jurisdiction of the cause notwithstanding the order of the first judge, even though it might appear of record that the first judge erred in holding himself not disqualified and his order would be reversed on appeal therefrom.
Rehearing denied.
ELLIS, C. J., AND WHITFIELD, TERRELL, STRUM AND BUFORD, J. J., AND WEST, Circuit Judge, concur.
BROWN, J., disqualified.
