Active political partisanship will not dis qualify a judge to try a contested election case ; Fulton v. Longshore, 156 Ala. 611, 46 South. 989, 19 L. R. A. (N. S.) 602.
If one of the judges is disqualified on this ground, a judgment rendered will be void, even though the proper number may have concurred in the result, which includes the interested judge ; 6 Q. B. 753; or though the parties agree to waive objections to the ju risdictions ; January v. State, 36 Tex. Cr. R 488, 38 S. W. 179 ; Lee v. Mortgage Co., 51 Tex. Civ. App. 272, 115 S. W. 320 ; and see infra. The objection may be raised for the first time in the appellate court ; Richardson v. Welcome, 6 Cush. (Mass.) 332 ; 2 H. L. Cas. 387 ; but in Iowa it was held that an objection to a judge of the court of original jurisdiction on the ground of interest must be made in that court ; Ellsworth v. Moore, 5 Ia. 486.
In a suit on a collector's bond by the chos en freeholders of a• county, one who was an inhabitant, a freeholder, and a taxpayer in the same county was incompetent to sit as judge ; Peck v. Freeholders of Essex County, 21 N. J. L. 656. A judge is not disqualified to try a case because he has tried an action in trespass concerning the same property; Martyn v. Curtis, 68 Vt. 397, 35 AU. 333.
The interest which disqualifies a judge of the supreme court so that a judge of the cir cuit court may sit in his stead must be im mediate, certain, and dependent on the re sult of the case, and not remote, uncertain, or speculative ; Trustees Internal Imp. Fund v. Bailey, 10 Fla. 213.
A bias which disqualifies a judge must such as might cause him to act corruptly or with such oppression as to be equivalent to corruption, such as to make it improper that a man of integrity should hear the case ; but the mere fact that a judge is unfriendly to. personal injury suits does not disqualify him in such a case ; McDonald's Adm'r v. Coal & Coke Co., 135 Ky. 624, 117 S. W. 349.
By statute a judge of the United States. Court of Appeals is disqualified if he acted in the cause in the court below.
The general rule that it is irregular and improper for a judge to try any cause in which he has such an interest as would dis qualify as a witness does not apply to orders purely formal in their character, and it is doubtful whether it would extend to a case in which no other judge could try and deter mine the cause. If the judge is deprived of
authority to act, by statutory inhibition, the proceedings are void, otherwise voidable only, and therefore valid until avoided ; Heyden feldt v. Towns, 27 Ala. 423.
It is said to be discretionary with him whether he will sit in a cause in which he has been of counsel; Owings v. Gibson, 2 A. K. Marsh. (Ky.) 517; Denn v. Tatem, 1 N. J. L. 164. See Bank of North America v. Fitzsim ons, 2 Binn. (Pa.) 454 ; Murphy v. Barlow, 5 Ind. 230 ; Cullen v. Drane, 82 Tex. 484, 18• S. W. 590. But the practice is to refuse to sit in such case. And in Reams v. Kearns, 5 Coldw. (Tenn.) 217, it was held that where the judge who rendered the judgment in the case had been counsel in it, the judgment was a nullity ; Tampa Street R. & Power Co. v. R. Co., 30 Fla. 595, 11 South. 562, 17 L. R. A. 681. Such relation disqualifies ; Stepp v. State, 53 Tex. Cr. R. 159, 109 S. W. 1093 ; but, it is held that it may be waived; Kerr v. Burns, 42 Colo. 285, 93 Pac. 1120; acquies cence gives consent; id. The question arose in Delaware at the time of the appointment of Bates, Chancellor, in 1865, whether he was legally disqualified from sitting in such cases, so as to bring them within the constitutional provision, giving. jurisdiction to the chief jus tice in all cases in which the chancellor was interested. In view of the desire of the chan cellor not to sit in cases in which he had been of counsel, the question was considered by him and Gilpin, C. J., and the conclusion reached that there was not a legal disqualifi cation. This conclusion was communicated by the chancellor to the legislature with a suggestion that provision should be made for the appointment of a chancellor ad litem in such cases ; MS. notes of Bates, Chancellor. Merely to have been counsel for one of the parties does not disqualify; Keller v. River. ton Water Co., 34 Pa. Super. Ct. 301.