D. W. Purvis, as Sheriff of Columbia County, Florida, and Ex Officio Administrator of the Estate of Sarah Baxley, Deceased, Robert Baxley and M. A. Baxley, Appellants, v. Talulah H. Frink, Appellee, 55 Fla. 715

Hooker, J. —Appellee Talulah H. Frink hied her bill against the appellants in the circuit court of Columbia county seeking to foreclose a mortgage given to secure the payment of a note for $700.00, both note and mortgage' executed 'by Sarah Baxley in her lifetime, to the appellee. Defendants hied a plea setting up that the transaction was usurious and a plea of part payment. The following petition was also hied by apppellants for a change of venue: “And now come the defendants by A. J.

Henry, their solicitor, and state that they fear that they cannot have a fair and impartial trial of the said cause in the third judicial circuit where the said cause is pending on account of the prejudice of the judge of the said court, the Honorable B. H. -Palmer, against the defendants, and their, cause, and in favor of the complainant and her cause, and as cause for such fears they state: That the said judge is a stockholder in and director, as these defendants are informed and believe, of both the First National Bank of Lake City, and Lake City Investment Company.

That both said bank and company are corporations domiciled and doing business in Lake City, Florida, and are engaged in the business of lending money, and discounting bills; that in their said business the said companies frequently lend money at the rate of ten per centum per annum, and charge interest in advance or, reserve, charge, or 'take •the interest or a portion thereof for the time of forbearance, at the time of lending the money, and in doing so, invariably charge, reserve or take, the sum that will be ten per cent, of the sum of money contracted to be lent, or the interest to be charged, reserved, or taken, instead of a sum that will be ten per centum per annum of t.he sum actually received by the borrower.

That in a certain transaction between the complainant in this case and Sarah Bexley, now deceased, the intestate and ancestress of these defendants, on the 3rd day of September, 1903, it was contracted by and between them, the said complainant and intestate and ancestress, that the said complainant should lend the said intestate and ancestress, the sum of seven hundred dollars and forbear the same for the period of one year next thereafter or until the 3rd day of September, 1904, and in consideration thereof reserve, charge, or take interest thereon at the rate cf ten per centum per annum, payable quarterly in advance ; and that the complainant in said transaction, when she received the note for $700.00, and the mortgage to secure the said note sought to- be foreclosed in this case, paid to the intestate and ancestress the sum of $682.50 as and for the said sum of $700.00 contracted to be lent as aforesaid, "pretending then and there and thereby to reserve the interest in the sum of $17.50 as and for the interest for the first quarter of the period of one year aforesaid; whereas the proper sum to be then reserved, charged or taken, was, as interest at the rate of ten per centum per annum for one quarter on the said sum of $700.00 when taken in advance only the sum of $15.90 which was the greatest sum that could be lawfully charged, reserved, or taken.

That these defendants are advised that the said transaction was usurious and unlawful inasmuch as then and there by the contract, and construction then put thereon by the parties thereto, and carried out by them as hereinbefore stated, was usurious and in violation of the law in that it was a contract for the payment of interest upon a loan and forbearance of the sum of money actually received by the borrower a,t a higher rate of interest than ten per centum per annum thereon, and that the said note and mortgage are obligations whereby the debtor was required to pay a greater sum than the sum actually received by the said intestate and ancestress together with interest thereon at the rate of ten per centum per annum, which said defences are presented by a plea and answer filed in the said cause.

That the' result of the decision in this case will be to establish whether such contracts are or are not usurious; that many and divers contracts and transactions by which money is lent, made, and interest charged by the said bank and other company, as herein-before stated, and' the construction put thereon and interest charged and taken by the said companies are identical in kind with the said contract affecting the said note and mortgage involved in this case, and the construction put thereon by the complainant and interest then reversed and taken.

And these defendants did not know of the relation of the said judge as such stockholder and director as hereinbefore stated, until on or about the 15th day of April, 1907, after the argument of their plea had been made and submitted.

Wherefore these defendants 'fear that the said judge has such an interest in the result of this case as to prejudice him in the interest of the complainant and against the defendants and pray that the venue of the said cause may be changed to some other circuit where a fair and impartial trial may be had, and your petitioner will ever pray, etc.” This application for a change of venue was heard by the circuit judge who made the following order: “This cause came on for hearing upon application of the defendants for change of venue filed August. 8th, 1907, and same was argued by counsel and upon, consideration thereof, it is ordered that said motion be denied.

Done and ordered this 10th day of September, 1907. B. H. Palmer, Judge. In making the above ruling the court desires to remark that had he followed his personal feelings, he would have granted said motion. But the court is here to follow what he deems to be the law of each case and not his personal likes or dislikes. The Bexleys have been long and close personal friends and the court would have been glad to have yielded to the application, but in obeying the laws as laid down in our Florida Reports and various other authorities, he is restrained from so doing. B. H.

Palmer, Judge.” From this order denying the application for a change of venue an appeal was taken to this court. Appellants rely upon

section 1471 under

Article 1,

Chapter 14 of the General Statutes of 1906, relating to change of venue. That

section is as follows: • “1471. (1079 Revised) On account of prejudice of judge or undue influence of opposite party.—Such change shall be granted if either party in any civil case, or the defendant in any criminal case, shall make application therefore on oath stating that he fears that he will not receive a fair trial in the court where the suit is pending, on account of the prejudice of the judge of said court against the applicant or in favor of the adverse party, or on account of 'the adverse party having an undue influence over the minds of the inhabitants of the county or justice’s district in which the case is pending, or on account of applicant being so odious; such application shall fully and distinctly set forth the facts upon which the same is founded.” It will be observed that the application for change of venue nowhere alleges any facts tending to show any prejudice on the part of the circuit judge against the appellants or either of them personally.

It seeks to show that the circuit judge by reason of being interested in two money-lending corporations who- are alleged to be lending money on terms similar to those in the instant case in interest in so deciding this case, as to sustain the contracts of the said corporations. Our statute must be construed in the light of our decisions upon what constitutes a prejudice such as will disqualify a judge.

Thus considered our statute must be construed to mean that the prejudice which will disqualify a judge must be a prejudice against a party tO' the cause and not a prejudice based on the possible incidental opinions and views of a judge growing out of his business relations. 23 Cyc. 585. See the luminous discussion of this question in Conn v. Chadwick & Co., 17 Fla. 429, in which it is very clearly shown that a contrary rule would not only put it in the power of a party to select the judge who was to decide his case, but wpuld .practically wipe out the judicial powers conferred upon judges by the constitution.

No authority is cited by appellants which sustains their contention. The circuit judge correctly ruled that he was without power to follow his personal inclination, but was to be governed wholly by the law of this state, and the sole question was whether the facts set forth in the petition constituted a disqualification of the judge to sit; if these facts do not make out a case of actual disqualification, the order of removal of the cause would be a nullity. Williams v. Robles, 22 Fla. 95.

It is clear that the disqualifying interest is a property interest in the action, not a mere interest in an abstract question that may be involved therein and which may arise in some possible future independent litigation not yet begun in which the judge may then have some interest. For all errors a judge may commit a party has his right of appeal. The decree of the circuit judge is affirmed. Parkhill, J., concurs; Shackleford, C. J., Cockrell and Whitfield, JJ., concur in the opinion.