2020 Georgia Code
Title 15 - Courts
Chapter 1 - General Provisions
§ 15-1-8. When Judge or Judicial Officer Disqualified

1. No judge or Justice of any court, magistrate, nor presiding officer of any inferior judicature or commission shall:
   1. Sit in any case or proceeding in which he is pecuniarily interested;
   2. Preside, act, or serve in any case or matter when such judge is related by consanguinity or affinity within the third degree as computed according to the civil law to any party interested in the result of the case or matter; or
   3. Sit in any case or proceeding in which he has been of counsel, nor in which he has presided in any inferior judicature, when his ruling or decision is the subject of review, without the consent of all parties in interest. In all cases in which the presiding judge of the superior court was employed as counsel before his appointment as judge, he shall preside in such cases if the opposite party or counsel agree in writing that he may preside, unless he declines to do so.
2. No judge or Justice of any court, magistrate, nor presiding officer of any inferior judicature or commission shall be disqualified from sitting in any case or proceeding because of the fact that he is a policyholder or is related to a policyholder of any mutual insurance company which has no capital stock.
3. Nothing in this Code section shall be construed as applying to the qualifications of trial jurors.
4. In all cases in which a part-time judge has a conflict because such judge or his or her partner or associate represents a governmental agency or entity, a subdivision of government, or any other client, the judge will recuse himself or herself or, with the permission of the parties, transfer the case to the state or superior court, but such judge will not otherwise be disqualified or prohibited from serving as attorney for such governmental entities.

(Laws 1801, Cobb's 1851 Digest, p. 460; Code 1863, § 199; Ga. L. 1868, p. 129, § 2; Code 1868, § 193; Code 1873, § 205; Ga. L. 1880-81, p. 58, § 1; Code 1882, § 205; Civil Code 1895, § 4045; Civil Code 1910, § 4642; Code 1933, § 24-102; Ga. L. 1935, p. 396, § 1; Ga. L. 1943, p. 322, §§ 1, 2; Ga. L. 1983, p. 884, § 4-1; Ga. L. 1984, p. 22, § 15; Ga. L. 1993, p. 981, § 1; Ga. L. 2016, p. 242, § 1/SB 262.)

- Mutual insurers generally, T. 33, C. 14.

Disqualified or not participating judges, Rules of the Supreme Court of Georgia, Rule 56.

Notice of cause for disqualification or recusal, Rules of the Court of Appeals of the State of Georgia, Rule 8.

Recusal, Uniform Rules for the Superior Courts, Rule 25.

Impartial and diligent performance of judicial duties, Georgia Code of Judicial Conduct, Canon 3.

- For article, "Wills, Trusts & Administration of Estates," see 53 Mercer L. Rev. 499 (2001).

ANALYSIS

• General Consideration
• Construction of Statutory Language
• Exhaustive Grounds for Disqualification
• Pecuniary Interest or Relationship
• Bias or Prejudice
• Cases in Which Judge Has Served of Counsel
• Previous Judicial Contact
• Recusal
• Waiver

General Consideration

Opinions limiting grounds for disqualification to only those enumerated in O.C.G.A.

§ 15-1-8 overruled. - Because in Stephens v. Stephens, 249 Ga. 700, 292 S.E.2d 689 (1982) the Supreme Court made clear that Canon 3E of The Code of Judicial Conduct provides "a broader rule of disqualification" than that provided in O.C.G.A. § 15-1-8, and both the statute and the canon provide grounds for recusal, to the extent that the below cases follow the prior rule, the following opinions are overruled: Bevil v. State, 220 Ga. App. 1, 467 S.E.2d 586 (1996); Johnson v. State, 208 Ga. App. 453, 430 S.E.2d 821 (1993); Brannen v. Prince, 204 Ga. App. 866, 421 S.E.2d 76 (1992); Mapp v. State, 204 Ga. App. 647, 420 S.E.2d 615 (1992). Gillis v. City of Waycross, 247 Ga. App. 119, 543 S.E.2d 423 (2000).

- Objection relative to the disqualification of a judge by reason of relationship or interest should generally be brought to the judge's attention before petitioning for the writ of prohibition. Riner v. Flanders, 173 Ga. 43, 159 S.E. 693 (1931).

- When the Constitution under consideration increased the membership of the Supreme Court from six to seven, and a justice had been appointed to fill the seventh place, and thus the very existence of the office the justice occupied was dependent upon the outcome of the case under consideration, since the justice's participation in the case would presuppose the validity of the instrument under attack the justice should not participate because the validity of the instrument should be determined by the court as constituted prior to the alleged adoption of the instrument under which the justice claimed office. Wheeler v. Board of Trustees, 200 Ga. 323, 37 S.E.2d 322 (1946).

When considering the issue of disqualification, both O.C.G.A. § 15-1-8 and Canon 3C of the Code of Judicial Conduct should be considered and applied. Kurtz v. State, 233 Ga. App. 186, 504 S.E.2d 51 (1998).

- Since former Code 1933, § 114-101 et seq. (see now O.C.G.A. T. 34, C. 9) provided for a different judicial procedure than cases at common law, the apparent conflict between former Code 1933, § 114-708 (see now O.C.G.A. § 34-9-103), wherein provision was clearly made for the single director who made the workers' compensation award to participate with the full board in review of the award, and former Code 1933, § 24-102 (see now O.C.G.A. § 15-1-8), providing for the disqualification of a judicial officer in a case in which the officer had presided in any inferior judicature, when the officer's ruling or decision was the subject of review, must be resolved in favor of the participation of the single director with the full board in accordance with the plain intention of the General Assembly as disclosed by the language of former Code 1933, § 114-708 (see now O.C.G.A. § 34-9-103). Wiley v. Bituminous Cas. Co., 76 Ga. App. 862, 47 S.E.2d 652 (1948).

- Granting of a motion to make a later term the appearance term and to perfect service in the meantime necessarily requires the exercise of a judicial function, facts are to be considered, and the judgment should be made accordingly, and therefore it cannot be said that the orders drawn into question in this case were mere formal or ministerial acts such as could have been performed irrespective of the judge's disqualification to preside at other stages of the proceeding. Smith v. Queen Ins. Co. of Am., 41 Ga. App. 587, 153 S.E. 785 (1930).

- Disqualification will not extend to mere formal acts designed to bring a case before a proper tribunal for adjudication, but will prohibit the hearing of the case or the making or passing of any order in relation thereto which is justiciable in its nature including orders for the purpose of extending time for service and appearance and issuance of new process. Smith v. Queen Ins. Co. of Am., 41 Ga. App. 587, 153 S.E. 785 (1930).

Act of judicial nature by disqualified judge is voidable. Allen v. State, 102 Ga. 619, 29 S.E. 470 (1897).

- For a judicial officer to bring one's own case before oneself as a trier of fact violates the basic philosophy on which the judicial system is founded, that every phase of litigation is to be heard and decided by a disinterested magistrate. Bonds v. Powl, 140 Ga. App. 140, 230 S.E.2d 133 (1976).

- Prisoner under sentence by a court of competent jurisdiction will not be released on writ of habeas corpus because of the disqualification of the judge who presided in the trial court. Wood v. Clarke, 188 Ga. 697, 4 S.E.2d 659 (1939).

Cited in Field v. Manly, 185 Ga. 464, 195 S.E. 406 (1938); Burgess v. Simmons, 191 Ga. 322, 12 S.E.2d 323 (1940); Bryant v. Mitchell, 195 Ga. 135, 23 S.E.2d 410 (1942); Galloway v. Merrill, 213 Ga. 633, 100 S.E.2d 443 (1957); Mathews v. Mathews, 220 Ga. 247, 138 S.E.2d 382 (1964); Garland v. State, 110 Ga. App. 756, 140 S.E.2d 46 (1964); Williams v. Mayor of Athens, 122 Ga. App. 465, 177 S.E.2d 581 (1970); Edwards v. Wheaton, 227 Ga. 424, 181 S.E.2d 48 (1971); Paine v. Lowndes County Bd. of Tax Assessors, 124 Ga. App. 233, 183 S.E.2d 474 (1971); Southeastern Fid. Ins. Co. v. Fluellen, 128 Ga. App. 877, 198 S.E.2d 407 (1973); Mann v. Malone, 231 Ga. 397, 202 S.E.2d 63 (1973); Cauley v. State, 130 Ga. App. 278, 203 S.E.2d 239 (1973); Cross v. State, 136 Ga. App. 400, 221 S.E.2d 615 (1975); Dungee v. State, 237 Ga. 218, 227 S.E.2d 746 (1976); Collins v. State, 141 Ga. App. 121, 232 S.E.2d 635 (1977); Pierce v. Moore, 244 Ga. 739, 261 S.E.2d 647 (1979); Cobb County Bd. of Tax Assessors v. Sibley, 248 Ga. 383, 283 S.E.2d 452 (1981); Johnson v. State, 208 Ga. App. 453, 430 S.E.2d 821 (1993); Bevil v. State, 220 Ga. App. 1, 467 S.E.2d 586 (1996).

Construction of Statutory Language

1. In General

Language of this Code section, being remedial in nature, should be liberally construed, and the word "cause" (now "case") should not be limited to a suit or proceeding in court. Murray County v. Pickering, 195 Ga. 182, 23 S.E.2d 436 (1942).

- Words "of counsel" in this section cannot be so restricted as to include only representation in a suit or proceeding in court. That section must be given a liberal construction so as to effect the intent of the legislature. Scogin v. State, 138 Ga. App. 859, 227 S.E.2d 780 (1976); King v. State, 246 Ga. 386, 271 S.E.2d 630 (1980).

2. Party

"Party" construed.

- Word "party" referred to would include any one pecuniarily interested in the result of the case, and would not be limited to a person who is a party to the record. Dobbins v. City of Marietta, 148 Ga. 467, 97 S.E. 439 (1918); Parks v. Citizens Bank, 40 Ga. App. 523, 150 S.E. 438 (1929).

Word "party" will include any person who is pecuniarily interested in the result of the suit, although not a party to the record and not necessarily bound by the judgment therein. Smith v. Queen Ins. Co. of Am., 41 Ga. App. 587, 153 S.E. 785 (1930).

Proper construction to be placed upon the word "party" is the broad meaning which would include any one pecuniarily interested in the result of the case, and not the narrow and technical meaning which would limit the rule to a person who was a party to the record. Dennard v. State, 46 Ga. App. 513, 168 S.E. 311 (1933).

Word "party" as used in this section is not restricted to technical limitation of party to case, but includes those who are interested in the result of the case, although not parties to the case. Georgia Power Co. v. Watts, 184 Ga. 135, 190 S.E. 654 (1937); Gray v. Barlow, 241 Ga. 347, 245 S.E.2d 299 (1978).

Interest of person not party to record which will disqualify judge is pecuniary interest in result of litigation. Gray v. Barlow, 241 Ga. 347, 245 S.E.2d 299 (1978).

3. Pecuniary Interest

Construction of "pecuniarily interested."

- Words "pecuniarily interested," as employed in this section, should be construed to mean pecuniarily interested "in one side or the other of the case - a loss in the subject matter, or a gain dependent upon the result of the issue." Dennard v. State, 46 Ga. App. 513, 168 S.E. 311 (1933).

"Pecuniary interest" means direct pecuniary interest in result of particular case. Robinson v. State, 86 Ga. App. 375, 71 S.E.2d 677 (1952).

- History of this section confirms the view that the "pecuniary interest" in a cause or proceeding referred to does not include an interest in the costs. Dennard v. State, 46 Ga. App. 513, 168 S.E. 311 (1933).

- Costs are the fees allowed officers of courts for their services in a judicial proceeding; though incidental to a suit are independent of the issue. There is no liability upon a party for costs until judgment, fixing that liability, and pecuniary interest in costs, the amount of which is fixed by law, is not synonymous with "pecuniary interest" in a case. Wellmaker v. Terrell, 3 Ga. App. 791, 60 S.E. 464 (1908).

Exhaustive Grounds for Disqualification

Statutory grounds exclusive.

- It is the general rule that statutory grounds of disqualification are exclusive. Elliott v. Hipp, 134 Ga. 844, 68 S.E. 736, 137 Am. St. R. 272, 20 Ann. Cas. 423 (1910); Luke v. Batts, 11 Ga. App. 783, 76 S.E. 165 (1912).

- Statutory grounds of disqualification of judicial officer, as contained in this section, are exhaustive. York v. State, 42 Ga. App. 453, 156 S.E. 733 (1931); Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936), aff'd, 184 Ga. 164, 190 S.E. 582 (1937); De Krasner v. Boykin, 54 Ga. App. 38, 186 S.E. 749 (1936); Blakeman v. Harwell, 198 Ga. 165, 31 S.E.2d 50 (1944); Jones v. State, 219 Ga. 848, 136 S.E.2d 358, cert. denied, 379 U.S. 935, 85 S. Ct. 330, 13 L. Ed. 2d 345 (1964); Daniel v. Yow, 226 Ga. 544, 176 S.E.2d 67 (1970).

This section sets forth the statutory grounds for disqualification of a judicial officer. Those grounds have been held to be exhaustive. J.B. v. State, 139 Ga. App. 545, 228 S.E.2d 712 (1976).

- Grounds of disqualification of a judge, set forth in this section, are exhaustive, and do not include alleged prejudice or bias that is not based on a pecuniary or relationship interest. Elder v. Camp, 193 Ga. 320, 18 S.E.2d 622 (1942); Columbian Peanut Co. v. Pope, 69 Ga. App. 26, 24 S.E.2d 710 (1943); Smith v. State, 74 Ga. App. 777, 41 S.E.2d 541, cert. denied, 332 U.S. 772, 68 S. Ct. 86, 92 L. Ed. 357 (1947); Yeargin v. Hamilton Mem. Hosp., 229 Ga. 870, 195 S.E.2d 8 (1972).

- Circumstances in which a trial judge may be disqualified are set out in this section. These grounds are exhaustive, and bias or prejudice on the part of a judge is not legal ground for disqualification. Stevenson v. Stevenson, 222 Ga. 47, 148 S.E.2d 388 (1966).

- In order to disqualify a judge there must exist a ground authorized by law to disqualify the judge; it is not for the courts to add other grounds of disqualification. Blakeman v. Harwell, 198 Ga. 165, 31 S.E.2d 50 (1944); Mapp v. State, 204 Ga. App. 647, 420 S.E.2d 615 (1992).

Pecuniary Interest or Relationship

1. In General

- If an injunction was granted against several defendants, and later an attachment proceeding was brought against some of the defendants for an alleged violation of such injunction, the judge of the superior court was not disqualified to hear and determine the attachment proceeding because of a relationship to one of the defendants against whom the injunction was issued, but who was not among the parties charged in the attachment proceeding, and who did not appear to have any interest therein. Tomlin v. Rome Stove & Range Co., 183 Ga. 183, 187 S.E. 879 (1936).

- Fact that the wife of the judge who entered the default was a first cousin to the wife of the defendant does not disqualify the judge. Edison Provision Co. v. Armour & Co., 51 Ga. App. 213, 179 S.E. 829 (1935).

- Judge is not prohibited from presiding over a criminal case in which the alleged victim is one with whom the judge has worked by either O.C.G.A. § 15-1-8 or Canon 3 of the Code of Judicial Conduct. Smith v. State, 189 Ga. App. 27, 375 S.E.2d 69 (1988).

- Judge is not per se disqualified to try a cause when one of the parties to which is a church, lodge, or society of which the judge is a member. Blakeman v. Harwell, 198 Ga. 165, 31 S.E.2d 50 (1944).

- If in a criminal prosecution, the son of the judge trying the case is assisting in the prosecution of the case but would not reap any pecuniary gain personally by reason of the conviction, such an interest is one which is not direct, certain, and immediate so as to require the judge to disqualify oneself. DeLoach v. State, 78 Ga. App. 482, 51 S.E.2d 539 (1949).

- If the judge of the trial court was disqualified by virtue of a relationship within the prohibited degree to one of the attorneys for the plaintiff, who was the judge's brother, and who, by virtue of the nature of the attorney's employment, had a pecuniary interest in the subject matter of the litigation, the trial judge erred in holding oneself qualified to preside in the case. Western & Atl. R.R. v. Michael, 43 Ga. App. 703, 160 S.E. 93 (1931), aff'd, 175 Ga. 1, 165 S.E. 37 (1932).

- If a judge presiding in the trial of a criminal case is related to the defendant within the fourth (now sixth) degree of consanguinity, and neither the defendant nor defendant's counsel has knowledge of the existence of such relationship until after the trial, the mere fact that such relationship existed will not require the grant of a new trial. Parker v. State, 146 Ga. 131, 90 S.E. 859 (1916); Dixon v. State, 26 Ga. App. 13, 105 S.E. 39 (1920).

Writ of prohibition will lie to restrain judge from proceeding in action in which the judge is disqualified by reason of interest or relationship, although the court over which the judge presides may have jurisdiction of the cause. Riner v. Flanders, 173 Ga. 43, 159 S.E. 693 (1931).

- Although the justices of the Supreme Court may be disqualified on account of pecuniary interest in the subject matter of the litigation, nevertheless the Supreme Court justices must decide such a case if there is no other tribunal to do so, and none can be legally constituted. Wheeler v. Board of Trustees, 200 Ga. 323, 37 S.E.2d 322 (1946).

At common law, judge must have had interest in case, or the judge was not disqualified. Roberts v. Roberts, 115 Ga. 259, 41 S.E. 616, 90 Am. St. R. 108 (1902); Tibbs v. City of Atlanta, 125 Ga. 18, 53 S.E. 811 (1906).

Judge is not disqualified because judge is interested in subject to be decided if judge has no direct and immediate interest in the judgment to be pronounced. To work a disqualification, the interest must be a direct, certain, and immediate interest, and not one which is indirect, incidental, or remote. DeLoach v. State, 78 Ga. App. 482, 51 S.E.2d 539 (1949).

To work disqualification, interest must be direct, certain, and immediate interest, and not one which is indirect, incidental, or remote. A judge is not disqualified because the judge is interested in the question to be decided if the judge has no direct and immediate interest in the judgment to be pronounced. Beasley v. Burt, 201 Ga. 144, 39 S.E.2d 51 (1946).

Interest which disqualifies a judge from presiding in case is a direct pecuniary, or direct property interest, or one which involves some individual right or privilege in the subject matter of the litigation whereby a liability or pecuniary gain must occur on the event of the suit. Blakeman v. Harwell, 198 Ga. 165, 31 S.E.2d 50 (1944).

Interest which disqualifies judge from presiding in case is a direct pecuniary or property interest in the subject matter of the litigation whereby a liability or pecuniary gain would occur on the outcome of the suit. Adams v. McGehee, 211 Ga. 498, 86 S.E.2d 525 (1955).

O.C.G.A. §§ 15-1-8,15-6-4, and15-19-58 did not conflict with one another so as to be unconstitutional because O.C.G.A. § 15-1-8 provided that judges should not be disqualified from sitting in a proceeding because the judge was a policyholder of any mutual insurance company; O.C.G.A. § 15-6-4 provided for qualifications for state superior court judges, and O.C.G.A. § 15-19-58 allowed the state bar to seek injunctive relief against parties engaging in the unauthorized practice of law. Alyshah v. Georgia, F. Supp. 2d (N.D. Ga. Sept. 1, 2006), aff'd, 230 Fed. Appx. 949 (11th Cir. Ga. 2007).

Disqualifying interest may be personal one to judge, but the general rule is that the interest must be pecuniary in nature, and not remote, uncertain, speculative, or merely incidental with a distinction between a property interest and such interest as results from a feeling of sympathy or bias that would disqualify a juror. Blakeman v. Harwell, 198 Ga. 165, 31 S.E.2d 50 (1944).

To work disqualification, liability or pecuniary gain or relief to judge must occur upon event of suit, not result remotely in the future from the general operation of laws and government upon the status fixed by the decision. Beasley v. Burt, 201 Ga. 144, 39 S.E.2d 51 (1946).

Requirement of impartiality disqualifies judge from acting in case in which judge has interest. Blakeman v. Harwell, 198 Ga. 165, 31 S.E.2d 50 (1944).

- Fact that the judge was a stockholder in a different bank which held a lien on a portion of the land in controversy would not disqualify the judge to preside in a proceeding to enjoin trespass, such other bank not being a party, and no question as to the validity or priority of the bank's lien being involved. Manry v. First Nat'l Bank, 195 Ga. 163, 23 S.E.2d 662 (1942).

- Judge of the superior court, who is a depositor creditor of an insolvent bank in the charge of the state superintendent of banks (now commissioner of banking and finance) for purposes of liquidation, is pecuniarily interested and therefore disqualified to act in a suit for accounting, injunction, and receiver instituted by a principal against an agent and the superintendent of banks seeking to recover an interest in dividends due to an estate in control of the agent for the principal, which the superintendent of banks has wrongfully applied to the individual debt of the agent, and enjoining other similar impending misapplication of dividends due to the estate. Gaskins v. Gaskins, 181 Ga. 124, 181 S.E. 850 (1935).

- Although the judges of a judicial circuit received a salary supplement from a county, the judges did not have a direct pecuniary interest in the outcome of a lawsuit, accordingly, there was no basis for recusal of the judges based on a financial interest or partiality under O.C.G.A. § 15-1-8(a)(1) and Ga. Code Jud. Conduct Canon 3(E)(1)(c)(iii). Jones County v. A Mining Group, LLC, 285 Ga. 465, 678 S.E.2d 474 (2009).

- Interest which a judge has in a public matter in common with other general taxpayers is not sufficient to disqualify the judge. The judge's interest must be direct and immediate before the judge will be disqualified. City of Valdosta v. Singleton, 197 Ga. 194, 28 S.E.2d 759 (1944).

Crime victim's relationship to a county commissioner did not require disqualification of superior court judges because the commission provided supplemental salaries to sitting judges. Kelly v. State, 238 Ga. App. 691, 520 S.E.2d 32 (1999).

- Fact that the ordinary (now probate judge) was one of those who signed, as an individual, a petition requesting the call of a special election for the purpose of submitting to the qualified voters of the county the question of taxing, legalizing, and controlling alcoholic beverages and liquors did not show that the ordinary (now probate judge) was disqualified because the ordinary (now probate judge) was pecuniarily interested in the matter before the ordinary (now probate judge), or that the ordinary (now probate judge) was otherwise disqualified from calling and holding the special election. McCluney v. Stembridge, 206 Ga. 321, 57 S.E.2d 203 (1950).

- Probate court judge's ownership of stock in a bank which was a party to the proceeding disqualified the judge from hearing the matter pursuant to paragraph (a)(1) of O.C.G.A. § 15-1-8 and the judge should have granted a motion to recuse. White v. SunTrust Bank, 245 Ga. App. 828, 538 S.E.2d 889 (2000).

It is pecuniary interest of attorney in result of case which disqualifies judge when one or more of the counsel for a party in whose behalf the fees are asked is related to the judge within the degree referred to in the statute declaring when a judge should be disqualified. Roberts v. Roberts, 115 Ga. 259, 41 S.E. 616, 90 Am. St. R. 108 (1902); Chadwick v. State, 87 Ga. App. 900, 75 S.E.2d 260 (1953).

Relationship to counsel for party will disqualify judge only when counsel has pecuniary interest in case. Young v. Harris, 146 Ga. 333, 91 S.E. 37 (1916).

- Judge is not disqualified to preside in a case on ground of relationship to one of the attorneys for the plaintiff within the degree of relationship that would disqualify the judge, unless the attorney related to the judge has an interest in the litigation. Atlantic Coast Line R.R. v. McDonald, 50 Ga. App. 856, 179 S.E. 185, cert. denied, 296 U.S. 621, 56 S. Ct. 143, 80 L. Ed. 441 (1935).

- Supreme court justice disqualified self from any case in which lawyers from a law firm represented a party because the justice's spouse was an equity partner who normally shared the firm's profits from all cases, and O.C.G.A. § 15-1-8 and Ga. Code Jud. Conduct Canon 3(E)(1)(c)(iii) required disqualification from all cases in which the firm represented a party; disqualification is required when a judge has a spouse who is an equity partner at the law firm representing a party to a case because it is imperative that the public has faith and trust in the impartiality of the justice system, and any appearance of impropriety that may exist is enhanced when the relative at issue is the judge's spouse. Friends of the Chattahoochee, Inc. v. Longleaf Energy Assocs., LLC, 285 Ga. 859, 684 S.E.2d 632 (2009).

Close relationship of party to presiding judge will be presumed beneficial, and not prejudicial, to that party, and if waived by the opposite party affords no ground for a new trial. Guthrie v. Peninsular Naval Stores Co., 26 Ga. App. 458, 107 S.E. 260, cert. denied, 26 Ga. App. 801 (1921).

- Judge is disqualified to sit in a case in which a corporation is a party, when a holder of stock of the corporation is related to the judge by consanguinity or affinity within the sixth degree, according to the civil law, whether the stockholder is a party to the case or not, and that is true of the holder of "preferred stock" which pays a fixed dividend of income out of the earned profits of the corporation. Georgia Power Co. v. Watts, 184 Ga. 135, 190 S.E. 654 (1937).

- Close familial relationship between the mayor, who was the judge's mother, and the judge could impede the impartiality of the judge's judgment in presiding over the adjudication of matters involving the city; such a perceived bias or prejudice suffices for disqualification. In re Judge No. 97-61, 269 Ga. 425, 499 S.E.2d 319 (1998).

- Just as a judge is not disqualified merely because of an interest in some abstract legal question that is presently involved and which may arise in some future litigation affecting the judge or the judge's property rights, so an interest of like nature by the judge's relative would not disqualify the judge. In neither case would there be pecuniary interest in the result of the litigation within the meaning of the law. City of Valdosta v. Singleton, 197 Ga. 194, 28 S.E.2d 759 (1944).

- It was not an abuse of discretion to deny the plaintiff's motion to set aside the verdict and judgment on the ground that the original trial judge, as the second cousin of the defendant's wife, was disqualified because the judge was allegedly related within a prohibited degree of consanguinity since the relationship was not revealed to the parties until after the verdict, and since the plaintiff was not harmed by the alleged disqualification in that the trial judge to whom the case was assigned after the original judge disqualified oneself entered judgment for the plaintiff. Roper v. Durham, 256 Ga. 845, 353 S.E.2d 476 (1987).

- Mere fact that attorney representing party to pending case might give a bonus to a judge's son, the judge's new associate, at end of year is too remote and speculative to work disqualification of the judge. Stephens v. Stephens, 249 Ga. 700, 292 S.E.2d 689 (1982).

- Disqualification of a judge to preside in a case in which the husband of the judge's sister is a stockholder in a corporation which is a party is not removed upon the death of the sister, if she leaves children, issue of the marriage, in life at the time of the trial. Georgia Power Co. v. Moody, 186 Ga. 343, 197 S.E. 844 (1938).

Bias or Prejudice

Bias or prejudice not disqualification.

- This section does not provide that bias or prejudice is a ground to disqualify a trial judge from presiding in the case. Jones v. State, 219 Ga. 848, 136 S.E.2d 358, cert. denied, 379 U.S. 935, 85 S. Ct. 330, 13 L. Ed. 2d 345 (1964); P.D. v. State, 151 Ga. App. 662, 261 S.E.2d 413 (1979).

Personal bias or prejudice is not ground of disqualification, and the statutory grounds of disqualification are exhaustive. Clenney v. State, 229 Ga. 561, 192 S.E.2d 907 (1972).

- Prejudice or bias on the part of the judge, not based on interest, nor on any other ground not named in the statute, is, as a general rule, not assignable as a ground for disqualification. Tibbs v. City of Atlanta, 125 Ga. 18, 53 S.E. 811 (1906).

This section, providing under what circumstances judges shall be disqualified, specifies only matters in which the judges have a pecuniary interest or are related within the sixth degree to any party interested in the result of the matter. The statutory grounds named in that section are exhaustive. Prejudice, bias, or prejudgment or even an exhibition or partisan feeling, when not arising from these grounds, is ordinarily not assignable as a ground of disqualification. Robinson v. State, 86 Ga. App. 375, 71 S.E.2d 677 (1952).

- Prejudice or bias, not based on interest, will not disqualify the ordinary (now probate judge) from presiding in a contest. Moore v. Dugas, 166 Ga. 493, 143 S.E. 591 (1928).

Alleged prejudice or bias of a judge, which is not based on an interest either pecuniary or relationship to a party within a prohibited degree, affords no legal ground of disqualification. Jones v. State, 219 Ga. 848, 136 S.E.2d 358, cert. denied, 379 U.S. 935, 85 S. Ct. 330, 13 L. Ed. 2d 345 (1964); McRae v. State, 116 Ga. App. 407, 157 S.E.2d 646 (1967); Daniel v. Yow, 226 Ga. 544, 176 S.E.2d 67 (1970); P.D. v. State, 151 Ga. App. 662, 261 S.E.2d 413 (1979).

- Any alleged prejudice or bias against the party's attorney rather than the party personally is not, per se, grounds for disqualification. Mann v. State, 154 Ga. App. 677, 269 S.E.2d 863 (1980); Head v. State, 160 Ga. App. 4, 285 S.E.2d 735 (1981); Baxter v. State, 176 Ga. App. 154, 335 S.E.2d 607 (1985).

- In order to be disqualifying, alleged bias of judge must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from the judge's participation in the case. Carter v. State, 246 Ga. 328, 271 S.E.2d 475 (1980).

For recusal, the alleged bias or prejudice of the trial judge needed to be of such a nature and intensity to prevent the defendant from obtaining a trial uninfluenced by the court's prejudgment. Bitt Int'l Co. v. Fletcher, 259 Ga. App. 406, 577 S.E.2d 276 (2003).

- Allegations of judicial prejudice against counsel based upon events or circumstances occurring outside the ambit of the then pending action are not sufficient grounds for disqualification of the judge. Mann v. State, 154 Ga. App. 677, 269 S.E.2d 863 (1980).

Prior knowledge of facts of case has relevance merely as to any bias or prejudice of judge. It does not make the judge an "invisible witness" or a visible witness and provides no legal ground for the judge's disqualification. Stevenson v. Stevenson, 222 Ga. 47, 148 S.E.2d 388 (1966).

- Simply because a judge has approved the order in a case does not show bias or prejudice so as to prevent the judge from reviewing the judge's action fairly and impartially. Daniel v. Yow, 226 Ga. 544, 176 S.E.2d 67 (1970).

State of Georgia did not violate O.C.G.A. § 9-4-7 or O.C.G.A. § 15-1-8 by arresting and incarcerating plaintiff for contempt after the plaintiff willfully violated a consent order enjoining the unauthorized practice of law because such claims were barred by the Eleventh Amendment in that the state had not waived sovereign immunity. Alyshah v. Georgia, F. Supp. 2d (N.D. Ga. Sept. 1, 2006), aff'd, 230 Fed. Appx. 949 (11th Cir. Ga. 2007).

- Under Canon 3C(1)(a) of the Georgia Code of Judicial Conduct, a judge should disqualify oneself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances when the judge has a personal bias or prejudice concerning a party or the party's lawyer; consequently, if bias or prejudice of a judge has been shown concerning a party, it is error for the judge to hear and decide the case. Savage v. Savage, 234 Ga. 853, 218 S.E.2d 568 (1975); Mann v. State, 154 Ga. App. 677, 269 S.E.2d 863 (1980).

- Defendant's complaints of bias and prejudice stemmed from the trial court's rulings with which the defendant did not agree, such as allowing into evidence the document defendant signed agreeing not to return to the airport and not allowing into evidence a prior judge's statements in a trial for a similar charge that resulted in an acquittal; these rulings did not show bias against the defendant simply because the rulings were favorable to the prosecution and violated neither O.C.G.A. § 15-1-8 nor Ga. Code Jud. Conduct Canon 3(E). Williams v. State, 257 Ga. App. 589, 571 S.E.2d 571 (2002).

Case where judge "has been of counsel" means particular case being tried, and the fact that the judge has represented the party in another case will not disqualify the judge. Cox v. State, 85 Ga. App. 702, 70 S.E.2d 100 (1952).

- Trial judge should have had no part of case concerning which the judge had been consulted while at bar. Mendenhall v. Hopper, 453 F. Supp. 977 (S.D. Ga. 1978), aff'd, 591 F.2d 1342 (5th Cir. 1979).

- If judge participated in negotiations on plaintiff's behalf, such judge is disqualified from sitting on case to which plaintiff is a party. Smith v. Queen Ins. Co. of Am., 41 Ga. App. 587, 153 S.E. 785 (1930).

If an attorney advises a person that a certain instrument or permit or license gives the person a legal right, and afterwards a controversy arises between such person and another as to whether or not it does confer such right, and the attorney has come to the bench, the attorney cannot sit in judgment between those persons in that controversy, but is disqualified to do so by virtue of such professional relation to the former party on the subject of that controversy. Smith v. Queen Ins. Co. of Am., 41 Ga. App. 587, 153 S.E. 785 (1930).

- Fact that the ordinary (now probate judge) of county of administratrix's residence had as a practicing attorney represented administratrix in the application as an individual for appointment as administratrix in another county did not disqualify the ordinary (now probate judge) to approve the new bond and to issue the certificate necessary in transferring the administration of administratrix's residence since these acts were not in the same cause or matter in which the ordinary (now probate judge) had been of counsel. Head v. Waldrup, 197 Ga. 500, 29 S.E.2d 561 (1944).

- Judge is not disqualified to preside in a given case merely because previously, as an attorney at law for one or both of the parties, the judge may have drawn the contract on which the action or defense is founded. Luke v. Batts, 11 Ga. App. 783, 76 S.E. 165 (1912); Carson v. Blair, 31 Ga. App. 60, 121 S.E. 517 (1923), cert. denied, 31 Ga. App. 811, 122 S.E. 260 (1924).

Georgia district attorney is "of counsel" in all criminal cases or matters pending in the district attorney's circuit; this includes the investigatory stages of matters preparatory to the seeking of an indictment as well as the pendency of the case. King v. State, 246 Ga. 386, 271 S.E.2d 630 (1980).

Judge who was district attorney when defendant was sentenced should not have participated in later ex parte proceedings by defendant to correct alleged clerical errors in the court's records of the judge's sentence, although the judge did not personally prosecute the defendant. Prater v. State, 222 Ga. App. 486, 474 S.E.2d 684 (1996).

- Investigation of criminal activities in the county, including those of the defendant, conducted by the G.B.I. under authorization from the trial court judge during the judge's former tenure as district attorney was a matter in which the judge "served as a lawyer" within the meaning of Canon 3C(1)(b) of the Georgia Code of Judicial Conduct, and "in which the judge has been of counsel" within the meaning of this section. King v. State, 246 Ga. 386, 271 S.E.2d 630 (1980).

- If the record did not show that the attorney who acted as the judicial officer in an appealed attachment proceeding ever acted as attorney for the appellee in any way which involved the subject matter of the appeal, there was no violation of this section. Kitson v. Hawke, 231 Ga. 157, 200 S.E.2d 703 (1973).

- No judge or justice of any court can sit in any cause or proceeding in which the judge has been of counsel unless the opposite party or that party's counsel agrees in writing that the judge may preside. Faulkner v. Walker, 36 Ga. App. 636, 137 S.E. 909 (1927).

Order ratifying sale based on original order when judge was counsel is voidable. East Rome Town Co. v. Cochran, 81 Ga. 359, 8 S.E. 737 (1889).

Previous Judicial Contact

Presiding at earlier criminal inquiry.

- Judge of the superior court is not disqualified from presiding at the trial of an indictment merely because previously thereto the judge held a court of inquiry and bound the prisoner over. Smith v. State, 74 Ga. App. 777, 41 S.E.2d 541, cert. denied, 332 U.S. 772, 68 S. Ct. 86, 92 L. Ed. 357 (1947).

- In a prosecution for family violence aggravated assault, the fact that the trial court had issued the victim a temporary restraining order (TRO) did not require the court to recuse itself sua sponte because: 1) it did not violate O.C.G.A. § 15-1-8(a)(3) since the TRO was not the subject of review at the defendant's criminal trial; and 2) there was no showing under Ga. Code Jud. Conduct Canon 3(E)(1) that the trial court's "impartiality might reasonably be questioned." Hargrove v. State, 299 Ga. App. 27, 681 S.E.2d 707 (2009).

- Trial judge in a charge of perjury is not disqualified for the reason that the judge presided in the trial of a case in which the alleged perjury was committed. Smith v. State, 74 Ga. App. 777, 41 S.E.2d 541, cert. denied, 332 U.S. 772, 68 S. Ct. 86, 92 L. Ed. 357 (1947).

- Since the only ground in a motion to disqualify a judge in a criminal trial was that the judge's decision at the interlocutory hearing would depend on the "legality and constitutionality" of the judge's own previous order, which the movant attacked, the judge did not err in overruling the motion and in declining to have another judge pass upon the case. Elder v. Camp, 193 Ga. 320, 18 S.E.2d 622 (1942).

Court properly denied the defendant's motion for an out-of-time appeal based on the defendant's contention that, four days before the defendant entered the defendant's guilty plea in 2000, the trial judge erroneously denied the defendant's motion to recuse the trial judge because the fact that the trial judge in the judge's previous capacity as district attorney prosecuted the defendant on another charge not currently pending before the judge was not, alone, a ground for disqualification and the trial judge ensured that the judge's name was redacted as district attorney from the previous indictment. Leverette v. State, 291 Ga. 834, 732 S.E.2d 255 (2012).

- Judge is not qualified to try a criminal case in which the judge personally drew the indictment and otherwise participated. Faulkner v. Walker, 36 Ga. App. 636, 137 S.E. 909 (1927).

Judge who is party to contract cannot determine if the contract has been completed. Mayor of Macon v. Huff, 60 Ga. 221 (1878).

- Judge is not disqualified because judge may have personal knowledge of some facts involved in case. Atlantic & Birmingham Ry. v. Mayor of Cordele, 128 Ga. 293, 57 S.E. 493 (1907).

- Judge is not disqualified to try a murder case merely because the judge was consulted as to the method of distribution of the estate before the judge's appointment. Woolfolk v. State, 85 Ga. 69, 11 S.E. 814 (1890).

- By requiring the consent of the parties, paragraph (a)(3) of O.C.G.A. § 15-1-8 requires a knowing waiver; thus, an employer did not waive the employer's right to challenge the review board's decision regarding a workers' compensation award since it was not disclosed that the administrative law judge who originally issued the award would be participating in the matter as a member of the review board. Arrow Co. v. Hall, 212 Ga. App. 365, 441 S.E.2d 794 (1994).

- Failure by a judge to disqualify oneself which serves to deprive the defendant of an unbiased trier of fact is a denial of due process. Mendenhall v. Hopper, 453 F. Supp. 977 (S.D. Ga. 1978), aff'd, 591 F.2d 1342 (5th Cir. 1979).

- While the judge might not have been required to grant a motion to recuse under the circumstances in the case, it could not be concluded that by a voluntary recusal the judge acted improperly, based on the possible appearance of impropriety resulting from the judge's former law firm's pecuniary interests in recovering against defendant hospital's insurer. Head v. Brown, 259 Ga. App. 855, 578 S.E.2d 555 (2003).

- Trial court did not err by denying defendant's motion for a new trial which asserted that the trial court erred since the county district attorney's office and the trial judge should have recused themselves from the case, sua sponte, as a result of a district attorney previously representing defendant on unrelated criminal charges, and the trial judge's prior prosecution of the defendant in 1994 as the evidence undisputedly showed that the defendant and defense counsel were aware of the potential conflicts at the onset of the prosecution and made deliberate, strategic decisions not to seek disqualification of either the county district attorney's office or the trial judge. Lemming v. State, 292 Ga. App. 138, 663 S.E.2d 375 (2008).

Recusal

Procedure when trial judge presented with motion to recuse.

- When a trial judge in a case pending in that court is presented with a motion to recuse accompanied by an affidavit, the judge's duty will be limited to passing upon the legal sufficiency of the affidavit, and if, assuming all the facts alleged in the affidavit to be true, recusal would be warranted, then another judge must be assigned to hear the motion to recuse. State v. Fleming, 245 Ga. 700, 267 S.E.2d 207 (1980); Mann v. State, 154 Ga. App. 677, 269 S.E.2d 863 (1980); Penney v. State, 157 Ga. App. 737, 278 S.E.2d 460 (1981); Riggins v. State, 159 Ga. App. 791, 285 S.E.2d 579 (1981).

- Trial judge did not err in refusing to recuse oneself, and in failing to refer the matter to an appropriate forum, although the defendant sued the judge in connection with this prosecution, since the defendant had shown no cause for speculation that the judge was so influenced by the filing of a lawsuit as to have infected the trial with personal bias and prejudice. Mapp v. State, 204 Ga. App. 647, 420 S.E.2d 615 (1992).

If the judge in a criminal prosecution had no knowledge during the trial of the judge's spouse's representation of the victim in a civil action against the defendant, the judge was not obligated to recuse oneself. Robertson v. State, 225 Ga. App. 389, 484 S.E.2d 18 (1997).

Juvenile court judge was not required to grant a recusal motion because of the judge's "contempt" for home schooling since the hearing transcript did not show any bias, much less contempt, but that the judge attempted to clarify the exact terms of the juvenile's probation; such did not exemplify a display of deep antagonism which made a fair trial impossible. In the Interest of A.H., 259 Ga. App. 608, 578 S.E.2d 247 (2003).

Defendant's argument on appeal that the trial judge should have been recused because the judge had previously heard the evidence during an earlier probation revocation hearing was waived because the defendant failed to make a written motion; further, there was no duty for the judge to have recused oneself sua sponte as there was no violation of a specific standard of O.C.G.A. § 15-1-8 or of Ga. Code Jud. Conduct Canon 3(E)(1)(a), which was the only possibly applicable prohibition in that Canon, as no bias or prejudice was shown. Phillips v. State, 267 Ga. App. 733, 601 S.E.2d 147 (2004).

In a drug trafficking case, the trial judge did not err in failing to sua sponte move for recusal because the judge was the district attorney when the defendant was previously convicted of drug charges and because the judge had recently presided over the defendant's probation revocation hearing. The defendant failed to present any citations to the record showing specific conduct or remarks by the trial judge that would have supported a claim that the judge harbored a bias toward the defendant to the extent that sua sponte recusal was necessary. Brown v. State, 307 Ga. App. 99, 704 S.E.2d 227 (2010).

Trial judge's refusal to sua sponte recuse oneself after being made aware that the judge was named as a defendant in a federal lawsuit the defendant filed pro se on the same day that the defendant's criminal trial commenced was not error since the defendant failed to show any cause for speculation that the judge was so influenced by the filing of a lawsuit as to have been infected with a bias of such intensity that it prevented the defendant from obtaining a fair trial. Robinson v. State, 312 Ga. App. 736, 719 S.E.2d 601 (2011).

Trial judge did not err by failing to recuse oneself because the defendant did not move for a recusal and there was no duty for a trial judge to sua sponte recuse oneself absent a violation of a specific standard of O.C.G.A. § 15-1-8 or Ga. Code Jud. Conduct Canon 3. Fitzpatrick v. State, 317 Ga. App. 873, 733 S.E.2d 46 (2012).

Judge was not related to the mother in a divorce action as it was the judge's son that was married to the mother's aunt and, thus, the judge was not required to be recused. Lacy v. Lacy, 320 Ga. App. 739, 740 S.E.2d 695 (2013).

Trial judge in a divorce case was not required to be recused because the mother's reference on a social networking website to a meeting between the judge and the mother's father did not support a conclusion that a reasonable person would have considered the judge biased and impartial in the divorce action. Lacy v. Lacy, 320 Ga. App. 739, 740 S.E.2d 695 (2013).

Trial court did not err by failing to recuse based on the trial judge's alleged extra-judicial professional contact and involvement with the county school superintendent, about whom the defendants made the false report of a crime, through the trial judge's position at a local college because the defendants cited to no evidence that the two had any actual contact or involvement, much less of the extent of such a relationship; and the defendants cited to no evidence regarding actual involvement between the trial court and the school board; thus, the defendants' allegations simply were not enough reasonably to call into question the trial judge's impartiality. Marlow v. State, 339 Ga. App. 790, 792 S.E.2d 712 (2016).

Trial judge did not err in failing to recuse based on having been previously involved in a serious automobile accident with the defendant's uncle because the defendant never filed a motion to recuse the judge despite knowing about an alleged auto accident before the trial and only waited until being tried, convicted, and sentenced to raise the issue. Shelton v. State, 350 Ga. App. 774, 830 S.E.2d 335 (2019).

Defendant could not use defendant's own misconduct, in engaging in harassing telephone calls to the judge's chambers and the judge's appropriate response thereto, as grounds to compel the judge to recuse oneself. Baptiste v. State, 229 Ga. App. 691, 494 S.E.2d 530 (1997).

- Even though judge's remarks may be ill-advised, if the remarks are not expressed before the jury that tried the case and could not have influenced the decision of the jury, no reversible error appears. Harkey v. State, 159 Ga. App. 112, 282 S.E.2d 648 (1981).

- It is as much the duty of a judge not to grant the motion to recuse when the motion is legally insufficient as it is to recuse when the motion is meritorious. The simple filing of an affidavit does not automatically disqualify a judge. Penney v. State, 157 Ga. App. 737, 278 S.E.2d 460 (1981).

- In a buyer's action against sellers and an executor for specific performance of land purchase agreements, the trial court did not err when the court denied the buyer's motion to recuse on the ground that the presiding judge had previously sold property to the executor because the real estate transaction that formed the basis of the motion to recuse was completed on April 12, 2004, which was well before the outbreak of the dispute in January 2007; there is no Georgia authority for the proposition that a judge previously represented by counsel in an unrelated matter must be recused from a case in which the same counsel represents a party now appearing. Simprop Acquisition Co. v. L. Simpson Charitable Remainder Unitrust, 305 Ga. App. 564, 699 S.E.2d 860 (2010).

- Trial judge erred in not assigning a motion to recuse to another judge as a reasonable question about the judge's impartiality was raised by affidavits stating that: 1) the judge's nephew had represented a party in the dispute that led to the lawsuit; 2) a partner from the nephew's law firm represented that party in the litgation; and 3) the partner talked to the trial judge about the case. Mayor & Aldermen of Savannah v. Batson-Cook Co., 291 Ga. 114, 728 S.E.2d 189 (2012).

- Defendant's ineffective assistance of counsel claim did not warrant a new trial in a prosecution for rape, kidnapping, aggravated stalking, and two counts of stalking; because of a variety of factors including the limited nature of a state witness's trial testimony, defense counsel made a strategic decision not to seek recusal of the trial judge, who was the brother of the challenged witness, and counsel discussed with the defendant the reasons for not seeking recusal. Pirkle v. State, 289 Ga. App. 450, 657 S.E.2d 560 (2008).

- Decisions to deny a motion to recuse because the motion and affidavit did not meet the requirements of Ga. Unif. Super. Ct. R. 25.3 are reviewed de novo. Therefore, the following appellate decisions that employed the abuse of discretion standard were overruled: Moore v. State, 722 S.E.2d 160 (2012); Grant v. State, 695 S.E.2d 420 (2010); Ga. Kidney & Hypertension Spec. v. FreseniuUSA Marketing, 662 S.E.2d 245 (2008); Adams v. State, 659 S.E.2d 711 (2008); Keller v. State, 648 S.E.2d 714 (2007); Hill v. Clayton County Bd. of Commrs., 640 S.E.2d 38 (2006); and In re J.E.T., 604 S.E.2d 623 (2004). Mayor & Aldermen of Savannah v. Batson-Cook Co., 291 Ga. 114, 728 S.E.2d 189 (2012).

- Trial court properly granted five defendants a new trial because the trial judge violated both O.C.G.A. § 15-1-8 and Ga. Code Jud. Conduct Canon 3 by failing to be recused for each trial as a result of a sexual relationship between the judge and the public defender who represented either the defendants or their codefendants. State v. Wakefield, 324 Ga. App. 587, 751 S.E.2d 199 (2013).

Waiver

Disqualification of judge may be waived.

- While a judge is disqualified when related to any party interested in the results of the case by consanguinity or affinity within the sixth degree, according to the civil law, whether a party to the case or not, that disqualification may be waived. Georgia Power Co. v. Watts, 184 Ga. 135, 190 S.E. 654 (1937).

- Disqualification of a presiding judge on account of relationship to a party or to one of the attorneys who has a contingent fee in the case may be waived, expressly or impliedly. Shuford v. Shuford, 141 Ga. 407, 81 S.E. 115 (1914).

Waiver of disqualification of judge may be effected expressly by agreement, or impliedly by proceeding without objection with the trial of the case with knowledge of the disqualification. Georgia Power Co. v. Watts, 184 Ga. 135, 190 S.E. 654 (1937); J.B. v. State, 139 Ga. App. 545, 228 S.E.2d 712 (1976).

Disqualification is waived by failing to make point, having knowledge of disqualification, during trial. Shuford v. Shuford, 141 Ga. 407, 81 S.E. 115 (1914); Morris v. State, 18 Ga. App. 759, 90 S.E. 729 (1916).

- No judge can preside in any case in which the judge is related to either party within the fourth (now sixth) degree of consanguinity or affinity, without the consent of all the parties at interest. Burch v. State, 18 Ga. App. 290, 89 S.E. 341 (1916); Dennard v. State, 46 Ga. App. 513, 168 S.E. 311 (1933).

This section expressly contemplates that disqualified judge may preside with consent of parties at interest; such disqualification may be waived, and it is not essential that the waiver be made expressly or in writing. Wood v. Clarke, 188 Ga. 697, 4 S.E.2d 659 (1939).

Written consent of the parties is necessary if the judge was formerly counsel, while a waiver based on relationship may be oral. Shope v. State, 106 Ga. 226, 32 S.E. 140 (1898).

- Provision that no ordinary (now probate judge) may preside in any case or matter when the ordinary (now probate judge) is related by affinity or consanguinity to any party interested in the result of the case within the sixth degree may be waived, and such waiver need not be in writing. Byrd v. Riggs, 211 Ga. 493, 86 S.E.2d 285 (1955).

- Since disqualification is a thing which may be waived, the disqualification's existence does not absolutely rob the court of jurisdiction in the particular case so that the court's action is coram non judice and may be collaterally attacked. Wood v. Clarke, 188 Ga. 697, 4 S.E.2d 659 (1939).

- When the judge is disqualified because of relationship "to any party interested in the result of the case or matter," the judge's disqualification may be waived by all of the parties, and in the absence of such a waiver, the judge of any other circuit, who is qualified, may act and preside for the disqualified resident judge. Howard v. Warren, 206 Ga. 838, 59 S.E.2d 503 (1950).

RESEARCH REFERENCES

Am. Jur. 2d.

- 46 Am. Jur. 2d, Judges, § 80 et seq.

- 48A C.J.S., Judges, § 107 et seq.

- Constitutionality of statute making mere filing of affidavit of bias or prejudice sufficient to disqualify judge, 5 A.L.R. 1275; 46 A.L.R. 1179.

Time for asserting disqualification of judge, and waiver of disqualification, 5 A.L.R. 1588; 73 A.L.R.2d 1238.

Powers of judge who has attained constitutional age limit, 25 A.L.R. 27.

Residence or ownership of property in city or other political subdivision which is party to or interested in action as disqualifying judge, 33 A.L.R. 1322.

Necessity as justifying action by judicial or administrative officer otherwise disqualified to act in particular case, 39 A.L.R. 1476.

Necessity of including averment as to time when prejudice was discovered in affidavit contemplated by statute entitling parties to substitution of another judge upon filing affidavit of prejudice or unfairness of judge, 93 A.L.R. 239.

Right of judge not legally disqualified to decline to act in legal proceeding upon personal grounds, 96 A.L.R. 546.

What is "civil action" or "civil proceeding" within statute relating to disqualification of judge or change of venue, 102 A.L.R. 397.

Disqualifying relationship by affinity in case of judge or juror as affected by dissolution of marriage, 117 A.L.R. 800.

Disqualification of judge who presided at trial or of juror as ground of habeas corpus, 124 A.L.R. 1079.

Right to change of judges, on issues raised by petition for writ of error coram nobis, 161 A.L.R. 540.

Disqualification of judge in pending case as subject to revocation or removal, 162 A.L.R. 641.

Reviewability of action of judge in disqualifying himself, 162 A.L.R. 654.

Interest of judge in an official or representative capacity, or relationship of judge to one who is a party in an official or representative capacity, as disqualification, 10 A.L.R.2d 1307.

Relationship to attorney as disqualifying judge, 50 A.L.R.2d 143.

Disqualification of judge in proceedings to punish contempt against or involving himself or court of which he is a member, 64 A.L.R.2d 600.

Prior representation or activity as attorney or counsel as disqualifying judge, 72 A.L.R.2d 443; 16 A.L.R.4th 550.

Prohibition as appropriate remedy to prevent allegedly disqualified judge from proceeding with case, 92 A.L.R.2d 306.

Intervenor's right to disqualify judge, 92 A.L.R.2d 1110.

Propriety and prejudicial effect of suggestion or comments by judge as to compromise or settlement of civil case, 6 A.L.R.3d 1457.

Disqualification of judge for having decided different case against litigant, 21 A.L.R.3d 1369.

Disqualification of judge on ground of being a witness in the case, 22 A.L.R.3d 1198.

Disqualification of judge because of his or another's holding or owning stock in corporation involved in litigation, 25 A.L.R.3d 1331.

Disqualification of original trial judge to sit on retrial after reversal or mistrial, 60 A.L.R.3d 176.

Disqualification of judge by state, in criminal case, for bias or prejudice, 68 A.L.R.3d 509.

Affidavit or motion for disqualification of judge as contempt, 70 A.L.R.3d 797.

Disqualification of judge, justice of the peace, or similar judicial officer for pecuniary interest in fines, forfeitures, or fees payable by litigants, 72 A.L.R.3d 375.

Membership in fraternal or social club or order affected by a case as ground for disqualification of judge, 75 A.L.R.3d 1021.

Validity and application of state statute prohibiting judge from practicing law, 17 A.L.R.4th 829.

Waiver or loss of right to disqualify judge by participation in proceedings - modern state civil cases, 24 A.L.R.4th 870.

Disqualification of judge because of assault or threat against him by party or person associated with party, 25 A.L.R.4th 923.

Disqualification of judge in state proceedings to punish contempt against or involving himself in open court and in his actual presence, 37 A.L.R.4th 1004.

Disqualification of judge because of political association or relation to attorney in case, 65 A.L.R.4th 73.

Disqualification from criminal proceeding of trial judge who earlier presided over disposition of case of coparticipant, 72 A.L.R.4th 651.

Disqualification of judge for bias against counsel or litigant, 54 A.L.R.5th 575.

Disqualification of judge based on property-ownership interest in litigation which consists of more than mere stock - state cases, 56 A.L.R.5th 783.

Prior representation or activity as prosecuting attorney as disqualifying judge from sitting or acting in criminal case, 85 A.L.R.5th 471.

Disqualification of judge for having decided different case against litigant - state cases, 85 A.L.R.5th 547.

Laws governing judicial recusal or disqualification in state proceeding as violating federal or state constitution, 91 A.L.R.5th 437.

Construction of provision in Federal Criminal Procedure Rule 42(b) that if contempt charges involve disrespect to or criticism of judge, he is disqualified from presiding at trial or hearing except with defendant's consent, 3 A.L.R. Fed. 420.

Timeliness of affidavit of disqualification of trial judge under 28 USCS § 144, 141 A.L.R. Fed 311.

Propriety and prejudicial effect in civil trial of federal judge's disparaging remarks concerning party, witness or attorney, 144 A.L.R. Fed. 363.

Disqualification of judge under 28 USCA § 455(b)(4), providing for disqualification where judge has financial or other interest in proceeding, 163 A.L.R. Fed. 575.