Opinion
No. 22350
Decided May 13, 1931.
Judges — Disqualification — Relation to parties or subject-matter raises natural inclination to prejudge case.
A judge is disqualified to preside in the trial of a case when his relation to the parties therein or to the subject-matter of the action is such that a natural inclination to prejudge the case arises therefrom.
IN MANDAMUS.
The relator filed four suits in Darke county, Ohio, in the court of common pleas against three local banks and former members of the Greenville board of education, to recover interest alleged to be withheld on deposits of school funds made in 1922. In these four actions the relator filed affidavits of prejudice against the judge of the court of common pleas. Counter affidavits were filed by the judge and by various attorneys. The application to assign another judge to try the causes was refused. Thereupon relator filed this proceeding in mandamus, praying that another trial judge be assigned to try the four actions.
The various affidavits of prejudice, in brief, alleged that the judge of the court of common pleas of Darke county, prior to his election to the bench, was a member of the firm which in the four actions in question is counsel for one of the banks and represents two of the individual defendants, that the judge is the beneficiary of a considerable bequest under a will, the executors of which are the cashier and president of the bank in question, that one of the defendants is the present probate judge of Darke county, through whose court a considerable fund is being distributed in connection with the settlement of an estate, and that fees are being collected in such estate settlement by the firm to which the trial judge formerly belonged, for legal services rendered during the time the trial judge was still a member of such firm; and the affidavits further set up that, by reason of his close social and business connection with such defendants, and with the firm representing one of the banks, the four actions being defended as a group, the trial judge is unable to sit impartially in the cases. The counter affidavit filed by the trial judge denies prejudice, bias or interest, but does not deny the essential facts alleged as to the social and business relationships set forth. With reference to the fund in the estate subject to distribution under the probate court, the trial judge states that some old accrued counsel fees may be coming therefrom to him.
Mr. A. Alvin North and Mr. Joseph W. Sharts, for relator.
Under the ramification of the social and business interests conceded to exist between the judge of the court of common pleas and the defendants in the four actions covered by this record, any one, whether consciously or unconsciously, would have a natural inclination to prejudge the several cases. It is of vital importance that the litigant should believe that he will have a fair trial. The facts set forth and conceded by the affidavits were sufficient to justify the plaintiffs in believing that they might not have such a trial. The writ will be allowed.
Writ allowed.
JONES, MATTHIAS and ROBINSON, JJ., concur.
DAY and KINKADE, JJ., dissent.
MARSHALL, C.J., not participating.