A. A. Ochus vs. Sheldon, Hoyt & Co., 12 Fla. 138

DuPONT, C. J., delivered the opinion of the Court : The record before us shows the following state of case : At the fall term of the Circuit Court, holden in and for the county of Columbia, the counsel for the appellees, who were plaintiffs in the court below, obtained leave to file a praecipe, summons and declaration in the case, under and by virtue of an agreement endorsed upon the declaration, in the following words, viz: “ I waive praecipe and summons and acknowledge service, and agree that the fall term of this court for 1867 shall be the judgment term. • “Signed, A. A.

OCHUS. “ April 19th, 1867.” On the same day, to-wit, on the 23d day of October, the following entry of judgment was made: “ And now on this day came the parties, by their attorneys, and the defendant saying nothing in bar or preclusion of the plaintiffs’ demands : It is ordered and adjudged that the plaintiffs do recover of the defendant and that the clerk do assess the damages.” It is also inade to appear that the cause of action sued upon is a promissory note made payable to the Judge who presided, and by him endorsed to the plaintiffs. The substance of the errors assigned is as follows,-: ££ 1st.

That the declaration not having been filed o-n the -first day of the second term, the case stood as dismissed under the rules of court.” 2d. That in waiving praecipe and summons and acknowledging service, as endorsed on the declaration, the defendant did not waive his legal right to make defence to the action. 3d. That the presiding judge was disqualified by interest from sitting on the trial of the cause. We now proceed to consider, in their order, the several errors assigned.

And first, the 15th rule adopted for the regulating of proceedings in the Circuit Courts, provides that “ all declarations must be filed on or before the first day of the term, and if not filed by the first term thereafter, the suit shall bo dismissed.” The record shows that the declaration in this case was not filed until the third day oí the term, and it is insisted in argument that, under the operation of this rule, the case was -ipso facto dismissed and the cause out of court.

We think that this construction of the rule is too stringent, and that the rule was designed only to give to the defendant a privilege, of which he might or might not avail himself.

In the record before us there is nothing to show that any objection was taken by the defendant in the court below, but there is the most conclusive evidence contained in the entry of the judgment itself that both parties were present by their counsel, and that the defendant said “ nothing in bar or preclusion of the plaintiffs’ demand.” In this state of case we think that the defendant, having neglected to claim his privilege in the court below, cannot be permitted -to do so in this court. The first assignment of error is, therefore, overruled.

The 2d error assigned is, £: that in waiving praecipe and ¡summons, and acknowledging service as indorsed on the declaration, the defendant did not waive his legal right to make defence to tlie action.” The proposition contained in this assignment of error is undoubtedly correct, and were it-sustained by the history of the case as detailed in the record,would be conclusive of the cause. But in no part of that record does it appear that the defendant made any effort to defend, or that he was debarred from this legal right by any ruling of the court below.

As it comes before us unsustained by any facts contained in the record, it is simply the enunciation of an abstract ’ proposition and has no bearing upon the case, and as this court deals only with the facts of the case as authenticated by the record, this assignment is also overruled. The 3d error assigned is, that the judge who presided at-the rendition of the judgment was interested in the result-of the suit.

This assignment is abundantly stísíained by the facts as set forth in the record, for it is there shown that the note which constituted the cause of action bears the indorsement (with a special waiver of protest and notice,) of the individual who presided as judge at the trial of the cause. It is a canon as old as the common law itself that no man shall be permitted to give judgment in his own cause. Vide Black. Com. Book III, page 298, note a.

It seems, however,that in proceedings under the common law this objection might be waived by the defendant so as to preclude him; from taking advantage of it, (ib. note 11,) and such seems-to have been the rule in our courts, until the enactment off the statute in 1862, which provides “ that no Judge of any Court, or Justice of the Peace, shall sit or preside in any cause to which he is a party, or in which he is interested, or", in which he would be excluded from being a juror by reason of interest, consanguinity or affinity to either of the parties 'r nor shall he entertain any motion in the cause other than to have the same tried by a competent tribunal.” The second

section of the act provides, “ That the judge or justice so incompetent, shall retire of his own motion and without waiting for an application to that effect: that any and all judgments, decrees ^and orders, made by a judge or judges so incompetent, shall be of no force or validity, and are hereby declared to be null and void, except an order for the trial of the cause as hereinbefore provided.” Pamph. Laws of 1862, page 13. There is no evidence in the record before us, that the defendant had waived his right to object to the presiding Judge as an interested party5 even if such waiver be admissible under the construction to be given to the 2d

section of the act. And5 in the absence of such evidence, we think that the objection under this assignment is well taken, and is fatal to the judgment rendered in the court below. Let the judgment be reversed and set aside, and the cause remanded for a new trial in the court below.