Citizens' Nat. Bank v. Graham

• Citation: 48 S.W. 910,147 Mo. 250
• Parties: CITIZENS' NAT. BANK OF KANSAS CITY v. GRAHAM.
• Decision Date: 06 December 1898
• Court: United States State Supreme Court of Missouri

48 S.W. 910

147 Mo. 250

CITIZENS' NAT. BANK OF KANSAS CITY v. GRAHAM.

Supreme Court of Missouri.

December 6, 1898.

SPECIAL JUDGE.

1. Rev. St. 1889, § 3327, allowing a special judge on agreement of parties, though not in terms providing that the agreement is dependent on inability of the regular judge to hold court, should be construed as making that condition; being in general terms, and being part of the same chapter as, and in pari materia with, section 3323, which makes such inability a predicate of any acquisition of jurisdiction by a special judge, whether elected or agreed on in accordance with section 3327.

2. A special judge, who has been agreed on and has qualified, retains exclusive jurisdiction of the case, notwithstanding an election of a successor to the regular, disqualified judge.

In banc. Proceedings by the Citizens' National Bank of Kansas City, Mo., for writ of prohibition to James F. Graham. Preliminary rule made absolute.

Virgil Conkling and Warner, Dean, Gibson & McLeod, for plaintiff. Wm. C. Forsee, J. L. Minnis, R. B. Garnett, and Hugh K. Rea, for defendant.

SHERWOOD, J.

A preliminary rule has been awarded in this cause, which was issued to prevent James F. Graham from proceeding further in the cause of the Citizens' National Bank of Kansas City against M. L. C. Donnell, or entertaining any jurisdiction therein, at the March term, 1898, of the Carroll circuit court, or at any time, etc. The cause of the bank against Donnell, which gave origin to the present prohibitory proceeding, arose in Kansas City, Mo., and was at the April term, 1897, taken, on defendant's application, to the circuit court of Carroll county, over which Hon. W. W. Rucker presided as judge. The cause was then docketed, and came on for trial on the plea in abatement filed before the change of venue was taken. The result of the trial of the plea in abatement before Judge Rucker was adverse to defendant; a verdict being rendered upholding the attachment, based on the allegation that Donnell had conveyed some $40,000 worth of his property to his son in order to defraud his creditors. Donnell's motion for a new trial and in arrest were denied, and thereupon he filed his answer to the merits, to which plaintiff replied; and a jury was impaneled by Judge Rucker, and sworn to try the cause on its merits. This was on Friday afternoon, June 9, 1897. Judge Rucker's regular term of court at Salisbury, in Chariton county, began on the Monday following, and the judge resided at Keytesville, in the same county; the respective places being about 15 miles apart, and each situated on the Wabash Railroad. At this juncture, judging by his observations while presiding at the trial on the plea in abatement, Judge Rucker concluded that to finish the trial of the case on its merits would discommode him, as he desired to return home before opening his term of court at Salisbury, and desired especially to be at Salisbury on the following Monday. So he called the attorneys of both parties to the bench, and requested them to agree upon some one to finish the case; giving the reasons therefor as we have stated. The attorneys did so, and agreed upon Mr. James F. Graham to finish the trial. Mr. Graham ascended the bench, and had the jury resworn. The record whereby this agreement was manifested (omitting caption) is the following: "Come the parties, by attorneys, and by agreement this cause is tried before the Honorable J. F. Graham, sitting as a special judge; and, by further agreement, waived his taking the oath administered to circuit judges." The evidence in the present proceeding shows that Judge Rucker was not at all disqualified from trying the original cause aforesaid. As Mr. Conkling, in his testimony, pertinently says: "Counsel on both sides preferred to have Judge Rucker try the case, and so stated to him. It was only at his urgent request that counsel agreed to excuse him. I know that Judge Rucker sustained an absolutely fair and impartial relation to the case and the parties therein, and that nothing whatever existed to disqualify him from proceeding with the case."

1. Our constitutional provisions in regard to vacancies, etc., occurring in the office of judge of any circuit, are contained in section 29, art. 6: "If there be a vacancy in the office of judge of any circuit, or if the judge be sick, absent, or from any cause unable to hold any term or part of term of court, in any county in his circuit, such term or part of term of court may be held by a judge of any other circuit; and at the request of the judge of any circuit, any term of court or part of term in his circuit may be held by the judge of any other circuit, and in all such cases, or in any case where the judge cannot preside, the general assembly shall make such additional provision for holding court as may be found necessary." The questions arising on this record are three, and these: First. Did James F. Graham acquire any jurisdiction over the cause under consideration in consequence of the agreement of the parties entered of record as aforesaid? Second. If he did acquire jurisdiction, did he subsequently lose the jurisdiction thus acquired? Third. If Graham did not lose the jurisdiction thus acquired, did Judge Rucker regain or retain such a modicum of jurisdiction therein as enabled him to try the cause, or as would allow Graham to try the cause, and in either instance their respective judgments be equally valid? It is obvious that a negative answer to the first question propounded settles the judicial and jurisdictional status of Graham towards the cause under review. Section 29 aforesaid has greatly broadened section 17, art. 6, of the constitution of 1865; but it has not changed the central idea of the original section, to wit, that of the inability of the judge of the circuit, through sickness, absence, or any other...