Sec. 51-39. Disqualification by relationship or interest. Judge or family support magistrate may act with consent of parties. - Connecticut Statutes

      Sec. 51-39. Disqualification by relationship or interest. Judge or family support magistrate may act with consent of parties. (a) Except as provided in this section, a judge or family support magistrate is disqualified to act if a relationship between the judge or family support magistrate and a party in any proceeding in court before him is as near as the degree of kinship between father and son, brothers, or uncle and nephew, by nature or marriage, or as near as between landlord and tenant, or if any judge or family support magistrate may be liable to contribute to the damages, costs or expenses of any proceeding before him, or if he may receive a direct pecuniary benefit by the determination of any proceeding before him.

      (b) A judge or family support magistrate shall not be disqualified to act in any proceeding by reason of his being a member of any ecclesiastical corporation, unless it is a party to the action, nor in any proceeding in which any town, city or borough is interested or is a party, by reason of his being an inhabitant thereof or liable to taxation therein or by reason of his being related to any taxpayer or inhabitant thereof.

      (c) When any judge or family support magistrate is disqualified to act in any proceeding before him, he may act if the parties thereto consent in open court.

      (1949 Rev., S. 7692-7694; P.A. 82-248, S. 20; P.A. 89-360, S. 22, 45.)

      History: P.A. 82-248 made technical revision, rewording some provisions and dividing section into Subsecs. but made no substantive change; P.A. 89-360 applied provisions to family support magistrates.

      This section applies to commissioners on insolvent estates. 9 C. 502; 12 C. 139; 13 C. 221. And to appraisers of land set off on execution. 1 C. 300; 13 C. 47. Disqualification arising from relationship by marriage ceases upon the death of one of the married parties. 12 C. 88. Justice of the peace disqualified when he owns the debt in suit. Id., 384. Statute does not affect ministerial acts. Id., 467. Judge of probate, uncle to a devisee and heir-at-law, not disqualified. 17 C. 542. Whether relationship to petitioner disqualifies commissioners laying out highway; if so, objection may be waived by matter in pais. 22 C. 178. Shareholder in bank owning railroad stock is disqualified to act as committee in a cause to which the railroad company is a party. 23 C. 384. Judge of probate held incompetent by reason of pecuniary interest. 26 C. 15. Applies to a magistrate taking a deposition. 52 C. 165. The word "act" embraces every act or proceeding in a suit. 60 C. 428. An incidental interest not pecuniary does not disqualify. 64 C. 310. Attorney should not try case before court of which he is judge. 72 C. 435. Disqualification not waived by trial; judgment is erroneous. 75 C. 104. An attorney not a "party". 83 C. 182. Relationship to a disinterested witness does not disqualify judge. 124 C. 237. Legislative history indicates that waiver provision applies to section 51-41 also. 147 C. 296. Where defendant requested and received a change of election from jury to court before the same judge he claimed was disqualified to hear the case and failed to make the claim until after his conviction, his actions can only be construed as consent in open court. 152 C. 630. Where judge participated in pretrial conference and urged settlement on plaintiff, proper course was for judge to decline to hear case but, as plaintiff failed to raise question of disqualification before or during trial, claim was waived and not seasonably raised on appeal. 155 C. 609. Cited. 170 C. 520. Statute mandates disqualification because of relationship between judge and defendant. Disqualification because of membership in bar association discussed. 184 C. 21. Cited. 186 C. 725. Cited. 214 C. 14. Cited. 227 C. 784. Commissioner of Correction could not prevail on claim that petitioner's failure to raise issue of disqualification during habeas proceedings amounted to consent in open court under statute that permits judge to preside over matter with consent of parties; petitioner was unaware of habeas judge's involvement in habeas proceedings until after they had concluded completely and, thus, lacked knowledge to consent. 280 C. 514.

      Cited. 2 CA 551; Id., 650. Cited. 4 CA 504; Id., 669. Cited. 6 CA 576. Cited. 7 CA 435. Cited. 10 CA 422. Cited. 14 CA 645. Cited. 18 CA 207.

      Subsec. (c):

      Cited. 195 C. 202.

      Cited. 9 CA 299. Cited. 13 CA 651.

      No statutory or common law ground existed to disqualify judge who had, fifteen years previous, as parole board member ruled adversely on defendant's request for parole. 5 Conn. Cir. Ct. 669.