
    Dark Tobacco Growers’ Co-operative Association v. Wilson, Judge, et al.
    (Decided January 13, 1925.)
    Petition eor Writs op Mandamus.'
    1. Judges — Judge Disqualified, in Action by Association of which he is Member. — Circuit court judge properly declined to sit in an action brought by a co-operative association of which he was a member.
    2. Injunction — Disqualified Judge is “Absent from the County,” Within Statute Authorizing Clerk to Grant Injunction or Temporary Restraining Order. — A judge, disqualified to act in case, is “absent from the county,” within Civil Code of Practice, section 273, authorizing clerk of court to grant injunction or temporary restraining order under such circumstances.
    L. P. TANNER, AARON SAPIRO, ABE D. WALDAUER and R. G. GARRISON for plaintiff.
    CLEMENTS & CLEMENTS and BEN D. RINGO for defendant.
   Opinion the Court by

Judge Sampson

Denying writ of mandamus against George S. Wilson, judge, bnt sustaining motion for writ against George F. Haynes, clerk of the Daviess circuit court.

This is an original action in this court by the Dark Tobacco Growers’ Co-operative Association, praying a writ of mandamus or mandatory injunction issue against the defendant, George S. Wilson, judge of the Daviess circuit court, and judge of the sixth judicial district of Kentucky, requiring him as judge to sign a restraining order or temporary injunction prayed in a case styled “Dark Tobacco Growers’ Co-operative Association, Plaintiff v. Shirley Hodges, Defendant,” pending in the Daviess circuit court; and if this cannot be done, then that this court issue a mandatory order directing and requiring defendant, George F. Haynes, clerk, to issue a temporary restraining order, as prayed in the ease of Dark Tobacco Growers’ Co-operative Association v. Hodges, without notice in either case.

There is also a prayer that a writ of mandamus or mandatory injunction be issued by this court commanding the clerk to issue temporary restraining orders in all cases where allowed by the Bingham Co-operative Marketing Act.

The petition alleges that Judge Wilson, who is a member of the plaintiff association, has declined to sit in tbe.case or to bear tbe motion on account of bis interest, and tbis fact bas been noted of record by tbe clerk of tbe Daviess circuit court in a regular order showing tbe disqualification of tbe judge and bis declination to serve.

Tbe action of Judge Wilson in declining to sit in a case where be is interested was entirely proper, for which be is to be commended. Being disqualified in tbe cases, and tbe record manifesting tbis fact, be is not tbe judge of tbe court in tbe case of the Dark Tobacco Growers’ Co-operative Association v. Hodges. Tbe judge of tbe court in that particular case is absent from tbe county, within tbe meaning of section 273 of tbe Civil Code, which provides that tbe clerk of tbe court may grant an injunction or temporary restraining order if tbe judge of tbe court be absent from tbe county. The Code provision makes it clear that it was- intended that some official should always be available within tbe county to protect tbe rights of litigants by tbe issual of injunctive orders. When tbe judge- is disqualified he is judicially absent from tbe county, and tbe clerk may act as if be were actually absent therefrom. The prayer of tbe plaintiff association for a mandatory order against tbe judge is denied for tbe reasons stated, but tbe mandatory order will issue directing George F. Haynes, clerk, to sign and issue, in tbe case of Dark Tobacco Growers’ Co-operative Association v. Hodges, pending in tbe Daviess circuit court, tbe injunction prayed, on motion of plaintiff association or its counsel.

Whole court sitting.  