2023 Nebraska Revised Statutes › Chapter 24 - Courts › 24-739 - Disqualification of judge; grounds.

24-739.
Disqualification of judge; grounds.
A judge shall be disqualified from acting as such in the county court, district court, Court of Appeals, or Supreme Court, except by mutual consent of the parties, which mutual consent is in writing and made part of the record, in the following situations:
(1) In any case in which (a) he or she is a party or interested, (b) he or she is related to either party by consanguinity or affinity within the fourth degree, (c) any attorney in any cause pending in the county court or district court is related to the judge in the degree of parent, child, sibling, or in-law or is the copartner of an attorney related to the judge in the degree of parent, child, or sibling, or (d) he or she has been attorney for either party in the action or proceeding; and
(2) When the judge was in copartnership, at the time of his or her election or appointment, in the law business with a practicing attorney in the district in which the judge was elected or appointed, the copartnership continued in the practice of law in the district and occupied the same office or rooms which were occupied by the copartnership at the time of his or her election or appointment, and the judge continues to occupy the same office or rooms with his or her ex-copartner, in all proceedings or litigation in which the ex-copartner is retained or interested, so long as the judge occupies the same office or room with his or her ex-copartner.
Source
Laws 1879, § 37, p. 89;
Laws 1907, c. 42, § 1, p. 180;
R.S.1913, § 1174;
Laws 1915, c. 22, § 1, p. 83;
C.S.1922, § 1097;
Laws 1923, c. 107, § 1, p. 265;
C.S.1929, § 27-315;
Laws 1935, c. 56, § 1, p. 186;
C.S.Supp.,1941, § 27-315;
R.S.1943, § 24-315;
Laws 1972, LB 1032, § 119;
Laws 1979, LB 80, § 82;
R.S.1943, (1985), § 24-315;
Laws 1991, LB 732, § 40.
Cross References
For change of venue, see sections 25-410 to 25-412.
Annotations
1. Disqualification because of interest
2. When not disqualified
3. Effect of disqualification
4. Effect of refusal to disqualify
5. Miscellaneous
1. Disqualification because of interest
The principle of disqualification because of a pecuniary interest is applicable to a justice of the peace. Conkling v. DeLany, 167 Neb. 4, 91 N.W.2d 250 (1958).
Interest of trial judge in outcome of an action must be of a pecuniary nature to disqualify him. Masonic Bldg. Corporation v. Carlsen, 128 Neb. 108, 258 N.W. 44 (1934); Uerling v. State, 125 Neb. 374, 250 N.W. 243 (1933).
Interest must be pecuniary to disqualify a judge. State v. Omaha Nat. Bank, 66 Neb. 857, 93 N.W. 319 (1903); Chicago, B. & Q. R. R. Co. v. Kellogg, 55 Neb. 754, 76 N.W. 466 (1898).
While the relationship of "spouse" is not specifically included in subsection (1)(c) of this section, the obvious intent of the statute is to ensure that parties are not forced to litigate before a partial judge or before a judge who appears to be partial, regardless of whether he or she actually is. When an attorney in a case (filing and signing the information used to charge the defendant) is the judge's spouse, the judge is disqualified and may not sit on the case, whether that judge had knowledge of the spouse's involvement or not. State v. Vidales, 6 Neb. App. 163, 571 N.W.2d 117 (1997).
2. When not disqualified
A showing that appellee's attorney had sent to the court a personal letter received by him from the appellee did not come within the provisions of this section and did not require the judge to disqualify himself. Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980).
When a judge advises the parties during the trial, that he may have an interest in the case and neither party objects to his hearing the case, the parties have mutually consented, under the terms of this section. Farm Bureau Ins. Co. of Nebraska v. Wozny, 206 Neb. 639, 294 N.W.2d 363 (1980).
District judge not disqualified to hear case because he previously presided in a proceeding involving one of the parties or presided in a proceeding involving both parties. Liberty Finance Corp. v. Jones, 184 Neb. 529, 169 N.W.2d 289 (1969).
Judge is not disqualified because of marriage to a sister of a party to the action, which sister had died before action was commenced leaving children surviving her. Zimmerer v. Prudential Ins. Co., 150 Neb. 351, 34 N.W.2d 750 (1948).
It is not grounds for disqualification that trial judge had been county attorney between time of filing complaint and trial, when shown he took no action whatever in case. Barnhart v. State, 104 Neb. 529, 177 N.W. 820 (1920).
Judge is not disqualified because he was counsel in case presenting identical questions. Hamilton County v. Aurora Nat. Bank, 89 Neb. 256, 131 N.W. 221 (1911).
Disqualification does not result because of relationship to complaining witness. Ingraham v. State, 82 Neb. 553, 118 N.W. 320 (1908).
Judge is not disqualified because, while Governor, he directed Attorney General to sue. State v. Omaha Nat. Bank, 66 Neb. 857, 93 N.W. 319 (1903).
Judge may hear action to vacate his own judgment. Chicago, B. & Q. R. R. Co. v. Kellogg, 55 Neb. 754, 76 N.W. 466 (1898), affirming 54 Neb. 138, 74 N.W. 403 (1898).
3. Effect of disqualification
Confirmation of sale under judgment procured while attorney is void. Harrington v. Hayes County, 81 Neb. 231, 115 N.W. 773 (1908).
Where judge is disqualified, judgment may be attacked collaterally. Harrington v. Hayes County, 81 Neb. 231, 115 N.W. 773 (1908).
Judgment is void if judge is disqualified. Walters v. Wiley, 1 Neb. Unof. 235, 95 N.W. 486 (1901).
4. Effect of refusal to disqualify
In an equity suit, the trial judge's refusal to disqualify himself is immaterial on appeal since the reviewing court examines the record and tries the case de novo. Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980).
In equity suit, denial by district court of disqualification is immaterial on appeal since case is tried de novo in reviewing court. Lippincott v. Lippincott, 144 Neb. 486, 13 N.W.2d 721 (1944).
5. Miscellaneous
The statutory grounds for the disqualification of a judge are set out in this section. State v. Rader, 223 Neb. 741, 393 N.W.2d 60 (1986).
Clear and convincing proof is necessary to overcome presumption of impartiality. State v. Smith, 77 Neb. 824, 110 N.W. 557 (1906).
Federal district court may stay proceedings pending determination of action subsequently instituted in district court of state between the same parties to determine validity of a foreclosure decree where sole matter to be determined was alleged nullity under this section disqualifying judge. Prudential Ins. Co. of America v. Zimmerer, 66 F.Supp. 492 (D. Neb. 1946).