48 S.W. 910 (Mo. 1898), Citizens' National Bank of Kansas City v. Graham

• Citation: 48 S.W. 910, 147 Mo. 250
• Opinion Judge: SHERWOOD, J. --
• Party Name: Citizens' National Bank of Kansas City v. Graham
• Attorney: Virgil Conkling and Warner, Dean, Gibson & McLeod for relator. William C. Forsee, J. L. Minnis, R. B. Garnett and Hugh K. Rea for respondent.
• Judge Panel: SHERWOOD, J. Burgess, Williams and Marshall, JJ., concur; Brace, J., in paragraph 1; Gantt, C. J., concurs, but not in all the language used.
• Case Date: December 23, 1898
• Court: Supreme Court of Missouri

Page 910

48 S.W. 910 (Mo. 1898)

147 Mo. 250

Citizens' National Bank of Kansas City

v.

Graham

Supreme Court of Missouri, Second Division

December 23, 1898

Preliminary rule made absolute.

Virgil Conkling and Warner, Dean, Gibson & McLeod for relator.

(1) In the determination of the questions involved in this case it must not be forgotten that the regular judge of the circuit was in no way disqualified from finishing the trial of the cause at Carrollton. (2) If Judge Rucker had from any cause been disqualified to try the case and a special judge had been agreed upon or elected by the bar to try it and the case had gone over until a successor to Judge Rucker had been chosen who was in all respects qualified to try it, then unquestionably Judge Rucker's successor in office would be the one to try it. Lacy v. Barrett, 75 Mo. 473. (3) The writ of prohibition is applicable to the case at bar. It is the only remedy where a special judge seeks to take jurisdiction of a matter where the regular judge, duly qualified, has assumed and taken charge of it as shown by the facts in this case. State ex rel. v. Elkin, 130 Mo. 105; Sess. Acts 1895, p. 95, sec. 1; Railroad v. Wear, 135 Mo. 256; State ex rel. v. Hirzel, 137 Mo. 435; State ex rel. v. Ross, 122 Mo. 435.

William C. Forsee, J. L. Minnis, R. B. Garnett and Hugh K. Rea for respondent.

(1) The declination of Judge Rucker to proceed to try the cause upon its merits, and his vacation of the bench in order to permit the special judge to proceed to hear and determine it, was, in its legal effect, a declaration of the fact that he could not "properly preside" in it, and, if he could not "properly preside" at that term, he could not do so at any subsequent term. Constitution, art. VI, sec. 29; R. S. 1889, secs. 3323-3327; Hawes on Jurisd., secs. 155 and 156; Cooley, Const. Lim., pp. 508, 509 and 511. (2) The circuit judge is not required to state, of record or otherwise, the reasons which induce him to send a particular cause or causes to a special judge. He may, in the words of the statute, do this "for any reason" which may satisfy his own conscience. Barnes v. Mullens, 78 Mo. 266. (3) As he did, in this instance, allow a special judge to be agreed upon, it must be conceded that there was some reason which was satisfactory to himself and sufficient in law. (4) The word "properly," as used in section 3323, Revised Statutes 1889, does not mean "conveniently." It justifies his sending a cause to a special judge only when he, "for any reason," feels that he can not righteously, or decently, or honorably, or with propriety, preside. (5) That jurisdiction can not be conferred by mere consent, is of course, elementary. Hawes on Jurisd., secs. 6, 10 and 11; Dodson v. Scruggs, 47 Mo. 286; Yale v. Mitchie, 47 Mo. 326; Harper v. Jacobs, 51 Mo. 297. (6) And it is equally true that where the laws have clothed a judicial officer with power to hear and determine a given cause, he has no power to divest himself of that jurisdiction except in the instances enumerated by law. To usurp powers not conferred by law, is no more reprehensible in the judicial officer, than to evade or decline the exercise of such as are so conferred. As the circuit judge declined, in this instance to proceed with the cause, and as the statute allowed him to decline in case he felt that he could not properly try it, the presumption that he declined upon the grounds permitted by law becomes conclusive, because otherwise his act in doing so was contrary to law. (7) The record entry showing that defendant was agreed upon at the June term, 1897, as special judge, invested him with full power and authority in the cause, and this power and authority remains with him, and with him only, until the final determination of the cause. Const., art. VI, sec. 29; R. S. 1889, secs. 3323-3327; Lacy v. Barrett, 75 Mo. 469...