It was held in one case that, where the brother of the trial court was one of the leading attorneys in the case, and the matter was to determine his right to certain attorney’s fee, and the trial court ordered $150 counsel fees in his favor, the pecuniary interest of the attorney, in the result of the case, disqualified the judge. Roberts v. Roberts 115 Ga. 259, 90 Am. St. Rep. 108, 41 S. E. 618.
Cooley, in his Constitutional Limitations, p. 507, says: “There is also a maxim of law regarding judicial action which may have an important bearing upon the constitutional validity of judgments in some cases. No one ought to be a judge in his own cause; and so inflexible and so manifestly just is this rule, that Lord Coke has laid it down that even an act of Parliament made against natural equity, as to make a man a judge in his own case, is void in itself. This maxim applies in all cases where judicial functions are to be exercised, and excludes all who are interested, however remotely, from taking part in their exercise. It is not left to the discretion of a judge, or to his sense of decency, to decide whether he shall act or not; all his powers are subject to this absolute limitation; and when his own rights are in question, he has no authority to determine the cause. To empower one party to a controversy to decide it for himself is not within the legislative authority, because it is not the establishment of any rule of action or decision, but is a placing of the other party, so far as that controversy is concerned, out of the protection of the law, and submitting him to the control of one whose interest it will be to decide arbitrarily and unjustly.
“Nor do we see how the objection of interest can be waived by the other party. If not taken before the decision is rendered, it will avail in an appellate court; and the suit may there be dismissed on that ground. The judge acting in such a case is not simply proceeding irregularly, but he is acting without jurisdiction. And if one of the judges constituting a court is disqualified on this ground, the judgment will be void, even though the proper number may have concurred in the result, not reckoning the interested party.
“Mere formal acts necessary to enable the case to be brought before a proper tribunal for adjudication, an interested judge may do; but that is the extent of his power.”
It is a familiar principle, that a judge cannot sit in the trial of his own case. It cannot be said that, in view of the allegations in this complaint, the trial judge did not have an interest in this case. Indeed, the principle here involved reaches much further than that. Assuming the allegations
