Opinion
Argued January 14, 1904
Decided January 29, 1904
Louis Marshall for appellants. George W. O'Brien for Third National Bank of Syracuse et al., respondents.
James S. Thorn for Syracuse Fibre-Ware Company, respondent.
The only question presented upon this appeal is whether the trial justice was disqualified to hear and determine the case resulting in the judgment which this action was brought to vacate and set aside. The appellants' claim that he was thus disqualified is based solely upon the provisions of section 46 of the Code of Civil Procedure, which forbids a judge to sit or take part in the decision of "a cause or matter" in which he has been attorney or counsel.
The first question arises as to the meaning which should be given to the words "cause or matter," as used in that section. When we examine the Code, we find that all judicial proceedings are divided into actions and special proceedings. An action is then defined as an ordinary prosecution, in a court of justice, by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense; and "every other prosecution by a party, for either of the purposes specified," is declared to be a special proceeding. (§§ 3333, 3334.)
In the light of these provisions, it seems quite clear that the words "cause or matter" in section 46 were intended to refer only to actions or special proceedings in which a judge might sit or take part, the word "cause" meaning a cause of action, and the word "matter" referring only to some judicial matter or proceeding and under the Code is included in special proceedings for the enforcement of civil rights. Indeed, so generally has the word "matter" been regarded as descriptive of a special proceeding, that in entitling a proceeding of that character the word "matter" is universally employed. Moreover, it is evident that a judge or justice cannot, as such, sit in or take part in the judicial decision of any matter which is not either an action or special proceeding, as all legal proceedings are included in one or the other.
Hence, the ultimate and precise question presented is whether the trial justice acted as attorney or counsel in the action which he heard and decided. Obviously not. First, an action was brought upon certain notes, owned and held by the defendant, the Third National Bank, by a firm of lawyers of which the justice was a member, judgment was obtained by default, execution was issued thereon and returned partly unsatisfied, the attorneys were then paid, and the relation of attorney and client between the defendant bank and such firm was permanently dissolved. After the lapse of five or six years a second action was brought by another attorney, the purpose of which was to enforce a resulting trust in certain property held for the benefit of one of the judgment debtors. Thus when the latter action was commenced, not only had the defendant's attorneys in the first action ceased to be such, but they had also ceased to have any interest therein. The judgment in the first action was conclusive upon the parties and the original cause of action was merged in it. That action having been terminated, it is obvious that the trial justice did not subsequently sit in or take part in its decision, as the judgment was absolutely final and no further action of any kind was ever taken in that case. The only cause in which it is even claimed that the justice had acted as attorney or counsel, constructively or otherwise, was the first, which terminated years before he was elected. While it is true that the second action was brought in aid of the judgment obtained in the first, yet it was an entirely independent and separate action, in which the parties were not the same, and the purpose of which was different. The issues in the two actions were essentially unlike. In the first the sole question was whether the defendants were indebted to the plaintiffs in the amount stated in the complaint, and that was conclusively settled by a final judgment, and the litigation in that suit was ended. In the second the issue was whether the money or property of one of the judgment debtors had been employed in the purchase of or invested in the property, the title to which had been taken in the name of another, so that under the statute a trust resulted in favor of the judgment creditor. The first cause of action was independent of the second, although the judgment therein became an incident thereto, and its existence was necessary to its maintenance. As to the issue in the last action, it is perfectly clear that the trial justice had given no advice or counsel, either directly or by representation. Thus it is obvious that neither he nor his partners had acted as attorney or counsel in the cause or matter in which he sat, and, hence, this case does not fall within the provisions of section 46.
The contention of the appellants is that as the general purpose of the first action was to collect the defendant's debt, and as the second action was in furtherance of the same purpose, they should be regarded as but one action, and as falling within the inhibition of section 46. The infirmity of that contention lies in the fact that such is not the language of the statute. The statute prohibits a judge from sitting in a case in which he has been attorney or counsel, but does not prohibit him from presiding upon the trial of an action, although its general purpose may be similar or the same as in some case where he had acted as attorney or counsel. Certainly the language of section 46 does not justify the appellants' claim.
Thus it is manifest that the facts in this case do not bring it within the literal provisions of the statute. Nor was it within its spirit and purpose. The evident object of the statute was to prevent a judge from sitting in a case in which he had previously acted as attorney or counsel. In this case it was expressly found that the justice was never consulted even in reference to the original action, and that he did not give any advice or perform any services therein or in relation thereto. Hence, it is apparent that he did not actually act as attorney or counsel therein within the spirit of section 46. But he must be regarded as having constructively appeared in the first action, and would have been legally disqualified from sitting in or deciding it, although he had never acted as attorney or counsel therein except by representation through the firm. This disqualification was technical, and arose only under the literal provisions of the statute, although perhaps not within its spirit or purpose. But in the second action he had never appeared either by representation or otherwise, and, hence, was not disqualified under the letter of the statute. Nor was his action within its spirit. There was neither claim nor pretense that the trial justice gave any counsel or acted as attorney in the case actually tried before him, or that his method of trial was otherwise than eminently fair and perfectly disinterested. Upon the argument this was absolutely conceded by the appellants' counsel. Hence, the claim as to his disqualification is at most purely technical, with no valid basis unless included within the letter of the statute, which it was not. This is rendered more obvious by the fact that no question as to the validity of the former judgment, the proceedings taken thereon, or as to the jurisdiction of the trial justice, was ever presented or even suggested until long after the conclusion of the second trial, although the appellants were familiar with all the facts pertaining to the justice's relation to the case and to the firm of Hiscock, Doheny Hiscock.
We are, therefore, of the opinion that this case is not brought within the letter of section 46; that no facts exist bringing it within its spirit, and that under the circumstances disclosed by the record the action of the courts below was proper and the judgment should be affirmed, with costs to each of the respondents who appeared separately upon this appeal.
PARKER, Ch. J., GRAY, O'BRIEN, CULLEN, JJ. (and HAIGHT, J., in result), concur; BARTLETT, J., not voting.
Judgment affirmed.