JOHN SEWELL AND FRANK GALLAT, PLAINTIFFS IN ERROR,
v.
W. I. HUFFSTETLER, DEFENDANT IN ERROR
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The Florida Supreme Court reversed a judgment on an injunction bond, holding that a judge should not have presided over a trial after allegations of prejudice were made against him. The court found that the defendants' sufficient allegations of prejudice warranted a change of venue, which was improperly denied.
Yes, it was error for the judge to preside over the trial after the defendants sufficiently alleged prejudice and moved for a change of venue, as such allegations warranted a change of venue.
“As the prejudice of the judge was sufficiently set up, it was error for him to sit as judge in the trial of the case.”
Establishes the core legal error found by the court.
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Join FLexlaw to unlock all legal intelligenceIn an action on an injunction bond, the defendants alleged prejudice against the presiding judge. Despite these allegations, the judge denied a motion…
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Per Curiam.
In this action on an injunction bond, there was a default and an inquest of damages tried before a Circuit Judge who was presiding in the place of a disqualified judge. Before trial affidavits were fiiled alleging in sufficient form the prejudice of the judge against the defendants, and a change of ’venue on that account was denied. The judge whose impartiality was challenged, tried the case which resulted in a verdict and judgment for the plaintiff and the defendants took writ of error. As the prejudice of the judge was sufficiently set up, it was error for him to sit as judge in the trial of the case. Sec. 1471 Gen. Stats. 1906. See Howell v. State, 77 Fla., 119, 81 South. Rep. 287; Berger v. United States, — U. S. —, 41 Sup. Ct. Rep. —, decided January 31, 1921. See Chap. 7852, Acts of 1919, passed after the trial of this cause.
The judgment is reversed.
Browne, C. J., and Taylor, Whitfield, Ellis and West, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Emelio Suarez v. State, 95 Fla. 42 (Fla. 1928)…1. It was further said in that case: “Where affidavits setting up prejudice of a judge against a party in any action or proceeding comply with the requirements of the statute on the subject, the judge should not try the cause. Sewell v. Huffstetler, 81 Fla. 374, 87 So. 782. But he has a lawful right, and it is his duty, to pass primarily upon the sufficiency of the affidavit to invoke the statute.” Citing Berger v. United States, supra. In the Berger case, it was held that the filing of an affidavit of per…
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Sewell v. Huffstetler, 83 Fla. 629 (Fla. 1922)…signments of error therefore are not sustained. The cause was submitted to a jury and a verdict was returned for the plaintiff. A Writ of Error was taken to the judgment and the same was reversed by this court. See Sewell and Gallat v. Huffstetler, 81 Fla. 374, 87 South. Rep. 782. The judgment was reversed because before the trial, affidavits were filed alleging in sufficient form the prejudice of the judge against the defendants and that he denied a change of venue. It appears that Judge Perkins was hold…
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Theo. Hirsch Co. v. McDonald Furniture Co., 94 Fla. 185 (Fla. 1927)…State, 77 Fla. 119, 81 So. Rep. 287. Where affidavits setting up prejudice of a judge against a party in any action or proceeding comply with the requirements of the statute on the subject the judge should not try the cause. Sewell v. Huffstetler, 81 Fla. 374, 87 So. Rep. 782. But he has a lawful right, and it is his duty to pass primarily upon the sufficiency of the affidavit to invoke the statute. Berger v. U. S. {Supra.). The ruling may or may not be error. It is subject to review by the Supreme Cour…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Grace v. Howell, 77 Fla. 119 (Fla. 1919)