In other cases we have held that a party desiring to suggest the disqualification of a judge must do so before the trial of the case or as soon as counsel knows of the facts of disqualification. McCune v. Commercial Pub. Co., 148 Miss. 164, 114 So. 268 (1927), and Shireman v. Wildberger, 125 Miss. 499, 87 So. 657 (1921). In McCune the Court stated:
1990); City of Biloxi v. Cawley, 332 So.2d 749, 750 (Miss. 1976); McCune v. Commercial Publ'g Co., 148 Miss. 164, 172, 114 So. 268, 269 (1927). This Court has consistently held that failing to object to a trial judge's appearance in a case can result in a waiver.
1990); City of Biloxi v. Cawley, 332 So.2d 749, 750 (Miss. 1976); McCune v. Commercial Publishing Co., 148 Miss. 164, 172, 114 So. 268, 269 (1927). The foregoing cases set forth our standards, and, on remand, the Court is directed to inquire carefully whether Minor may have waited too late to assert the present point.
Any other rule might result in an unfair advantage being taken in a case where an attorney, who moves against a judge, might wait until after he could ascertain whether the decision would be for or against him; and, if against him, he would file a motion to recuse, but if for him, he would accept it without complaint. 148 Miss. 164, 172, 114 So. 268, 269 (1927). In a related law review article, the editors of "American Law Reports Annotated" summarized their research accordingly:
No complaint was made to appellee, or during the proceedings before appellee, that appellant could not obtain a fair and impartial hearing, and no suggestion or request was made that the members of the board of education recuse themselves or that they were disqualified to hear the matter because of interest, bias, or prejudice. Although this Court has held that failure to make such objection at the trial waives the point [ City of Biloxi v. Cawley, 332 So.2d 749 (Miss. 1976) and McCune v. Commercial Pub. Co., 148 Miss. 164, 114 So. 268 (1927)], we address the constitutional question. Appellee was without authority to employ appellant except upon recommendation of the school principal [Mississippi Code Annotated § 37-9-17 (1972), and Lott v. State, ex rel. Kelly, 239 Miss. 97, 121 So.2d 402 (1960)].
VI. The appellant consented to the trial judge presiding by his failure to move the Court to disqualify himself. Binns v. Stokes, 27 Miss. 239; Brown v. State, 149 Miss. 219, 115 So. 436; Bryant v. State, 146 Miss. 533, 112 So. 675; Bubnash v. State, 366 P.2d 867; Burroughs Land Co. v. Murphy, 131 Miss. 544, 95 So. 515; Dixon v. Rowland, 143 Miss. 270, 108 So. 807; Hitt v. State, 149 Miss. 718, 115 So. 879; Hughes v. Black, 160 A.2d 113; Kennedy v. Kennedy, 222 Miss. 469, 76 So.2d 375; McCune v. Commercial Publishing Co., 148 Miss. 164, 114 So. 268; McGill v. Coomer, 309 Ky. 703; National Labor Relations Board v. Phelps, 136 F.2d 562; Nimocks v. McGehee, 97 Miss. 321, 52 So. 626; Pacheco v. People of Puerto Rico, 300 F.2d 759; People v. Wade, 309 P.2d 841; Rohr v. Johnson, 150 P.2d 5; Shireman v. Wildberger, 125 Miss. 499, 87 So. 657; State v. Mills, 370 P.2d 946; Yazoo M.V.R. Co. v. Kirk, 102 Miss. 41, 58 So. 710; Art. 3, Sec. 26, Constitution 1890; Anno. 73 A.L.R. 2d 1283; Griffith's Mississippi Chancery Practice, Sec. 676. VII. It is not bias which disqualifies a judge from hearing a case but "personal bias".
D. The fact that the parties by their acts and declarations indicated an intention to treat a written contract as continuing after the time prescribed in it for its termination did not have the effect of continuing such contract, but showed a subsequent oral agreement on the same terms. 13 C.J., "Contracts", Sec. 692. (1) Appellee's alleged, unliquidated damages arising out of different contract cannot be set off. McCune v. Commercial Pub. Co., (Miss.), 114 So. 268. (2) A recoupment for an unliquidated amount must spring from the same transaction which is the subject matter of the suit.
The appellant waived any procedural irregularities by proceeding to try his case before nine members of the board without objecting to such supposed lack of a quorum. Yazoo M.V.R. Co. v. Kirk, 102 Miss. 41, 58 So. 710; Shireman v. Wildberger, 125 Miss. 499, 87 So. 657; Bryant v. State, 146 Miss. 533, 112 So. 675; McCune v. Commercial Pub. Co., 148 Miss. 164, 114 So. 268; 6 C.J., Sec. 68. The appellant is precluded from making this collateral attack on the preliminary proceedings of the board of commissioners.
This suit is for tortious unliquidated damages and could not be set-off against the contractual obligation sued on in the original suit. Gridley v. Tucker, Freeman's Chancery 209; Whittaker v. Robinson, 16 Miss. 349; Myers v. Estell, 47 Miss. 17; Casper v. Thigpen, 48 Miss. 635; Raymond v. State, 54 Miss. 562; Adams Co. v. Thomas, 87 Miss. 391; McCune v. Commercial Publishing Co., 148 Miss. 164, 114 So. 268; Calhoun v. McNair, 175 Miss. 44, 166 So. 330; 24 R.C.L., page 851, par. 55; 57 C.J., page 396, par. 49. We submit that the first suit was on a contract, notes, negotiable in their character, and a promise to pay a stipulated amount.
It is a well settled rule of law in Mississippi that unliquidated damages cannot be used as a set-off in a suit for debt. McCune v. Commercial Publishing Co., 148 Miss. 164, 114 So. 268; 24 R.C.L., par. 53, page 850, sec. 59, pages 855 and 856, and sec. 60, page 856; 57 C.J., page 434, sec. 84, and note 54. Counsel for appellant insists now in their brief that the case at bar is one of mutual indebtedness and one clearly within the statute, but apparently overlooked the fact that when they filed their pleas in this cause, appellant denied under oath the account sued on in toto and undertook to recover by way of set-off unliquidated damages arising out of an alleged breach of contract, different and disconnected from the contract sued on; and this court, in the cases cited by us in our brief, has held that this cannot be done; that there cannot be mutual dealings where the defendant denies in toto the indebtedness sued on and at the same time undertakes to recover by way of set-off unliquidated damages arising out of breach of contract, different and disconnected from the contract sued on. Such pleas are insufficient in law and constitute no defense and any evidence