Swan v. Talbot

HENSHAW, J.

Plaintiff sued for the cancellation and rescission of a bill of sale which he had executed to defendant, and under which defendant had taken possession of the personal property therein described. He prayed that he be restored to the possession of the property and in case possession could not be had, be compensated for the value of the . property withheld.,,. The ground of action was that defendant had knowingly taken advantage of plaintiff while the latter was so intoxicated as to be incapable of transacting business, and, under these circumstances, secured his signature to the instrument. It was alleged that the property conveyed was of great value, and that the consideration for the bill of sale | was grossly inadequate. The cause was tried before the court

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without a jury, and the court found the incompetency and incapacity of the plaintiff because of his drunkenness, and found that the property which Swan conveyed to Talbot was of the value of $21,949.86, while the total amount due from Swan to Talbot, including two hundred dollars in coin paid to Swan at the time of the execution of the bill of sale, was but $10,604.32. The court found, moreover, that owing to changes of ownership in the personal property it was impracticable, while decreeing a cancellation of the bill of sale, to further order the restoration of the personal property, and therefore proceeded to give judgment for plaintiff in the sum of $11,-345.54, being the difference between the amount of Swan’s indebtedness to Talbot and the value of the property which Talbot obtained under the bill of sale. From this judgment and from the order denying defendant’s motion for a new trial he prosecutes this appeal.

- Before trial defendant moved the court and Hon. Oval Pirkey, judge thereof, that another judge be called in to try

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the case, and pressed this motion with great' vigor. With the same vigor he presses the matter upon this appeal, and a large part of the voluminous briefs is given over to extracts from the affidavits for and against the motion, and to a discussion of the alleged disqualification of the judge. The ground of the motion was the disqualification of the judge by reason of bias against the defendant and certain of his attorneys, together with’ charges of favoritism toward plaintiff’s attorneys. The evidence upon both sides presented has been read and considered. It must suffice to say, without any extended review thereof, which would serve no useful purpose, that the matters charged as facts and susceptible of denial were denied fully and completely by the counter affidavits, and in some instances, at least, the falsity of the charges established. It cannot be said that it was error of the court to have refused the motion, and it is but just to add, in view of the trial court’s ruling refusing so to do, that the position of the trial judge situated as was this one must always of necessity be most embarrassing and painful. For, upon the one hand, while it is his duty to grant the motion should bias or other disqualification be shown, yet, upon the other hand, it is equally his duty to deny the motion and to sit in the case himself if, in-his judgment, the disqualifying cause alleged is not sufficiently established by the evidence. An added embarrassment under such circumstances arises from the fact that the judge himself is made the trier of the question touching his own bias or other disqualification. But the law has seen fit to impose this painful duty upon him, and he may not shirk its performance.