McClendon v. Clinard

247 S.E.2d 783 (1978)

37 N.C. App. 353

Theodore McCLENDON and Rachel McClendon v. David Elwood CLINARD, Jr., Defendant and Third Party Plaintiff, v. George CARDWELL, d/b/a Cardwell Electric Company.

No. 7721DC1008.

Court of Appeals of North Carolina.

October 17, 1978.

*784 Legal Aid Society of Northwest North Carolina by Bertram Ervin Brown, II, and Paul Sinal, Winston-Salem, for plaintiffs.

Deal, Hutchins & Minor by Richard Tyndall and Richard D. Ramsey, Winston-Salem, for defendant and third-party plaintiff.

Hudson, Petree, Stockton Stockton & Robinson by Jackson N. Steele, Winston-Salem, for third-party defendant.

BROCK, Chief Judge.

Plaintiffs, in their first assignment of error, contend that the trial judge erred as a matter of law in denying plaintiffs' motion to recuse. We think disposition of this case is governed by North Carolina National Bank v. Gillespie, 291 N.C. 303, 230 S.E.2d 375 (1976). In that case the defendant made a motion to recuse, alleging personal bias and prejudice arising from an unfriendly termination of attorney-client relationship between the trial judge and defendant's family and a favorable disposition on the part of the judge towards the plaintiff. The Supreme Court declined to consider the merits of defendant's contention that the trial judge erred in failing to *785 recuse himself. Instead, the Court held that "when the trial judge found sufficient force in the allegations contained in defendant's motion to proceed to find facts, he should have either disqualified himself or referred the matter to another judge before whom he could have filed affidavits in reply or sought permission to give oral testimony." Bank v. Gillespie, supra, at 311, 230 S.E.2d at 380.

This case is distinguishable from Bank v. Gillespie, supra, in that the basis of the motion to recuse in this instance was prejudgment of the merits of defendant's motion rather than personal bias. However, the two cases are basically similar in that the respective motions raised serious questions about the impartiality of the trial judge. We think the trial judge in this instance should have either disqualified himself from ruling on the plaintiffs' motion to set aside the judgment or referred the motion to recuse to another judge for consideration and disposition. Canon 3(C)(1) of the Code of Judicial Conduct directs that, "[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . ." We think that where a motion to recuse of this nature is made, a reasonable man knowing all the circumstances would have doubts about the judge's ability to rule on the motion to recuse in an impartial manner.

We think it would unduly prolong the course of this litigation if we merely vacated the order denying the motion to recuse and remanded for referral of that motion to another judge. Therefor, we reverse the court's denial of the motion to recuse and hold that the judge committed error by not disqualifying himself in this instance. We also vacate the court's order denying the motion to set aside the judgment for excusable neglect and remand the case for consideration of that motion by another District Court Judge of Forsyth County.

We agree with Judge Keiger's concern that counsel lunched with one of the members of the jury venire. This very juror may have been called to serve for the trial of the case in which counsel was to appear. We also agree with Judge Keiger that the president of the local bar should have been advised of counsel's conduct. We think Judge Keiger may have gone further and advised the grievance committee of the North Carolina State Bar in order that it might investigate the matter. However, counsel's conduct does not mitigate what we consider to be erroneous conduct by the trial judge in proceeding to pass upon counsel's motion to set aside the order dismissing his client's case with prejudice. The correctness or incorrectness of the trial judge's ruling on the motion to set aside is not decided. We decide only that under the circumstances Judge Keiger should have disqualified himself to pass upon the motion to set aside.

Reversed and remanded.

CLARK and HARRY C. MARTIN, JJ., concur.