* Corpus Juris-Cyc. References: Judges, 33CJ, p. 990, n. 28; p. 1014, n. 50 New; Relationship to attorney in case as disqualifying Judge, see notes in 42 L.R.A. (N.S.) 1172; L.R.A. 1918F, 1036; 15 R.C.L. p. 532, 534; Supp. 3 R.C.L. Supp., p. 468; 4 R.C.L. Supp. 1001. The appellee was in the custody of the appellant, who is the sheriff of Benton county, under a conviction for having intoxicating liquor in possession, and was discharged from custody on a writ of habeas corpus by the chancellor of the district in which Benton county is situated. The sheriff has brought the case to this court.
The ground on which the appellee sought and was granted relief in the court below is that the justice of the peace who rendered the judgment on which he was in custody was without authority to render it because of his relationship to a person interested therein.
It appears from the evidence that, when the case was called for trial by the justice of the peace, an objection was interposed by the appellee to his proceeding therewith, for the reason that the witness on whose testimony the state would seek a conviction was a brother of the justice of the peace, and, under an order of the board of supervisors, would receive a portion of whatever fine the justice of the peace might impose on the appellee. This motion was overruled. The justice of the peace, after hearing the evidence, found the appellee guilty and sentenced him to pay a fine of three hundred dollars, and, in addition thereto, to serve a term of sixty days in the county jail. An appeal was taken from this judgment to the circuit court, where the case was dismissed, which dismissal of the case was affirmed on appeal to the supreme court.
Section 165 of the Constitution provides that — "No judge of any court shall preside on the trial of any cause where the parties or either of them shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties."
Section 2724 of the Code of 1906 (Hemingway's Code, section 2223), provides that — "Whenever, by reason of interest, relationship to one of the parties, or other like *Page 276 cause, any justice of the peace shall be disqualified to preside in any case before him, the same shall be transferred to a justice of the peace in that or an adjoining district free from such objection, in the county, who shall hear and determine the same."
The order of the board of supervisors here invoked provides:
"That the board of supervisors will hereafter pay one-third of the fine assessed and collected to the person or persons furnishing evidence which will result in the conviction of any person on a charge of the unlawful sale or keeping for sale intoxicating liquors against the laws of this state."
The appellant's contentions are: (1) The disqualification of the justice of the peace who rendered the judgment on which the appellee was in custody cannot be inquired into in a habeascorpus proceeding. (2) A witness in a criminal case is not a party thereto within the meaning of section 165 of the Constitution or of section 2724 of the Code of 1906 (Hemingway's Code, section 2223). (3) The order of the board of supervisors here invoked does not embrace prosecutions for merely having liquor in possession. (4) The order of the board of supervisors is void.
The disqualification of a judge because of his interest in a case, or of his relationship to a party thereto, can be availed of only by an objection to the judge made on that ground, either before his judgment is rendered, or, if made thereafter, before the judge has lost control of the judgment, Y. M.V.R.R. Co. v. Kirk, 102 Miss. 41, 58 So. 710, 834, 42 L.R.A. (N.S.) 1172, Ann. Cas. 1914B, 968, and his decision thereon is subject to review only in an appellate court on an appeal thereto if an appeal to such a court lies from the judgment rendered.
In Nimocks v. McGehee, 97 Miss. 321, 52 So. 626, a collateral attack was made on a judgment rendered by a justice of the peace on the ground that the justice of the peace was related to one of the parties thereto, and *Page 277 the judgment was upheld on two grounds: (1) No objection to the justice of the peace proceeding with the trial of the case on the ground of his disqualification so to do was made before the judgment was rendered; and (2) the judgment was not open to collateral attack on the ground of the disqualification of the justice of the peace who rendered it. The second of these grounds applies here, and relieves us of expressing any opinion on the other questions here raised. See, also, Ex parte Grubbs,79 Miss. 358, 30 So. 708.
The judgment will be reversed, and a judgment will be rendered here remanding the appellee to the custody of the appellant.
Reversed, and judgment here.