Waiver will be found by a failure to seasonably object. Nowlin v. Kreis, 213 Ark. 1027, 214 S.W.2d 221 (1948). Further, a failure to bring the matter to the judge's attention may constitute a waiver.
Significantly, a circuit court's review of the certification is de novo. Gocio v. Harkey, 211 Ark. 410, 200 S.W.2d 977 (1947) ; Nowlin v. Kreis, 213 Ark. 1027, 214 S.W.2d 221 (1948) ; Ferguson v. Leach, 210 Ark. 1032, 199 S.W.2d 305 (1947) ; Tollett v. Knod, 210 Ark. 781, 197 S.W.2d 744 (1946). Although a county clerk is required to meet the deadline, the clerk's loss of jurisdiction after five days does not limit the evidence that can be received in circuit court upon its de novo review of the certification.
The rule is based upon the common sense principle that a party should not be allowed to wait upon the adverse outcome of a case to decide whether to seek disqualification of a judge. See Nowlin v. Kreis, 213 Ark. 1027, 214 S.W.2d 221 (1948); Ingram v. Raiford, 174 Ark. 1127, 298 S.W. 507 (1927). The motion should also be denied as a matter of judicial administration.
In support of his argument, appellant cites our recently approved Code of Judicial Conduct and argues that Canon 2 and 3 would require the judge to disqualify himself on his own motion or sua sponte. Appellee responds that, in the absence of any objection, as here, the asserted error was waived inasmuch as it is raised for the first time on appeal. Pettigrew et al v. Washington County, 43 Ark. 33 (1884); Washington Fire Ins. Co. v. Hogan, 139 Ark. 130, 213 S.W. 7 (1919); Nowlin v. Kreis, 213 Ark. 1027, 214 S.W.2d 221 (1948); and Carr v. City of El Dorado, 217 Ark. 423, 230 S.W.2d 485 (1950). Here, we are confident the trial judge would have quickly disqualified himself had he been so requested by appellant.
That Judge KING had signed the petition was a patent fact — i.e., apparent on the face of the petition — and not a latent fact that might not have been discovered with the exercise of due diligence." Nowlin v. Kreis, 213 Ark. 1027, 214 S.W.2d 221. Also see Morrow v. Watts, 80 Ark. 57, 95 S.W. 988; Byler v. State, 210 Ark. 790, 197 S.W.2d 748; Bates v. State, 210 Ark. 1014, 198 S.W.2d 850. If appellant Carr wished to disqualify Mayor Shackleford (and we do not now decide whether the Mayor was subject to disqualification) he should have challenged his right to vote, as Alderman Cone's right was challenged, at the time of the vote, and he should have presented to the Chancery Court affirmative evidence of the timely challenge.
The rule is based on the common-sense principle that a party should not be allowed to wait on the adverse outcome of a case to decide whether to seek disqualification of a judge. See Nowlin v. Kreis, 213 Ark. 1027, 214 S.W.2d 221 (1948); Ingram v. Raiford, 174 Ark. 1127, 298 S.W. 507 (1927). In Worth v. Benton County Circuit Court, 351 Ark. 149, 154-55, 89 S.W.3d 891, 895 (2002), the supreme court held that a judge's alleged disqualification may be waived "by a failure to seasonably object."
Appellant failed to timely object and has thus waived the issue on appeal. Appellant acknowledges that litigants can waive certain judicial disqualifications by failing to timely object. SeeWorth v. Benton Cty. , 351 Ark. 149, 89 S.W.3d 891 (2002) ; Nowlin v. Kreis , 213 Ark. 1027, 214 S.W.2d 221 (1948). The fact that "Michael Medlock" prepared the quitclaim deed was apparent on the face of the deed.