STATE ex rel. LOWERY v. WALDEN

STATE ex rel. LOWERY v. WALDEN
1930 OK 114
285 P. 951
142 Okla. 115
Case Number: 20585
Decided: 03/11/1930
Supreme Court of Oklahoma

STATE ex rel. LOWERY
v.
WALDEN, Judge.

Syllabus

¶0 1. Judges--Judges to Be Unbiased--Constitutional Safeguard.
Section 6, art. 2, of the Constitution of Oklahoma requires that right and justice shall be administered without sale, denial, delay, or prejudice, and in order that this salutary safeguard may be maintained and be given full force, it is necessary that judges presiding over the courts should be unbiased, impartial, and disinterested in the result of the litigation, and it is of utmost importance that all doubt or suspicion to the contrary be jealously guarded against, to the end that every litigant may have that fair and impartial trial to which he is entitled.
2. Same--Mandamus--Writ Requiring District Judge to Certify Disqualification.
Where a district judge is disqualified to hear and determine a cause pending before him, he should certify his disqualification, and, upon his failure so to do, when requested in the manner provided by law, mandamus will lie.

Original action in Supreme Court for writ of mandamus by the State on relation of Miller E. Lowery against Asa E. Walden, Judge of District Court of Carter County. Writ granted.

R. L. Disney, for petitioner.
Asa E. Walden, District Judge, in pro. per.

ANDREWS, J.

¶1 This is an original proceeding instituted in this court by the petitioner against the respondent, as judge of the district court for the Eighth judicial district embracing Carter county, Okla., seeking a writ of mandamus to require said respondent to certify his disqualification to sit as judge in three causes pending in the district court of Carter county, being numbered 10718, 14496, and 16836 on the docket of that court.

¶2 It appears that petitioner has filed in said court in each of said causes a motion asking respondent to recuse and disqualify himself in said proceedings and that each of said motions has been overruled. It also appears that respondent rendered a judgment against petitioner, which judgment was reversed by this court in Lowery v. Richards et al., 120 Okla. 261, 248 P. 622, and that the cause was remanded with directions to the trial court to vacate its judgment and reinstate a former judgment quieting the title to the land involved therein in the petitioner herein and for further proceedings as to rents and profits, and that pursuant thereto, respondent, as trial judge, rendered a judgment in favor of petitioner therein for rents and profits, which judgment was affirmed in Richards et al. v. Lowery et al., 135 Okla. 243, 275 P. 335.

¶3 It is now charged that while the second case was pending on appeal the petitioner caused an execution to issue against the defendants in that action; that the respondent enjoined the enforcement of that execution pending the appeal to this court and required an injunction bond of only $ 500; that the judgment appealed from was in excess of $ 30,000, and that the judgment had not been superseded. Respondent admits these contentions and, for his response thereto, says that the petitioner was without funds and that if he had been permitted to execute upon the property of the judgment debtors, the judgment debtors would have lost their property, without recourse, should the judgment have been reversed on appeal.

¶4 It is further contended that the petitioner filed suit in that court in an attempt to impress an equitable lien for the proceeds of the accounting judgment and that while these proceedings were pending the respondent openly declared that he was sorry for having rendered the judgment in the accounting and that lie would not do so if he had the matter before him again. This is denied by respondent.

¶5 We do not consider it necessary to set forth the other allegations of bias and prejudice of the respondent, or to determine the controverted allegations herein, and we consider it sufficient to state that there has been a sufficient showing made in this record of statements made by the respondent to warrant the issuance of the writ.

¶6 While the respondent insists that he is not unfriendly to the petitioner, and while we do not doubt his sincerity in that regard, yet the question is not so much whether he feels that he is unbiased, impartial, and disinterested as whether his utterances and actions are such as to cause reasonable men to feel that he is not disinterested in the result.

¶7 As this court said in London v. Ogden, Dist. Judge, 130 Okla. 89, 265 P. 139.

"The basic principle on which the law rests is that every litigant is entitled to have his rights determined by an impartial and disinterested tribunal,"

--and:

"The members of the judiciary should so conduct themselves as to inspire the confidence of all and so that everyone will feel and know that in the court their rights will be protected. This confidence cannot exist, if judges persist in discussing, out of court, the merits of cases pending before them, or about to be brought before them, and informing and expressing opinions thereon. Where this has been done, the judge should not, in justice to the litigant, insist upon being permitted to sit in the trial of this case."

¶8 In the language used in that case, "* * * we conclude it is extremely doubtful, to say the least, as to whether the respondent could accord the petitioner that fair and impartial trial guaranteed by the Constitution and to which he is justly entitled, and from all the surrounding facts and circumstances the respondent, in our opinion should certify his disqualification. "