Hindman, &C v. Toney
| Decision Date | 08 May 1895 |
| Citation | 97 Ky. 413 |
| Parties | Hindman, &c v. Toney. Hindman, &c v. Field. |
| Court | Kentucky Court of Appeals |
There had, prior to April 11, 1895, been duly assigned to the chancery branch of the Jefferson Circuit Court the pending action of S. S. Sullivan, assignee, against Columbian Fire Insurance Company and others. But on that day W. R. Abbott, elected special judge and presiding in place of I. W. Edwards, regular judge, who was sick and unable to attend, made and caused entered of record an order transferring that action to the common pleas branch, because, as stated in the order, he was employed as attorney for one of the defendants, and therefore could not properly preside.
At a court held for Jefferson Circuit Court, common pleas branch, April 13, 1895, Hindman and others, defendants, moved the court to pass on and decide as to certain exceptions and certified matters in the case necessary to be decided. But no action was then taken or order made.
Again, April 29, 1895, they appeared and, notice having been given, moved the court to assign to a day hearing of pending motions. But Emmet Field, judge of the Jefferson Circuit Court, common pleas branch, then, as recited, "declined to consider the motion or any other motion herein, or to take any action in this case."
It further appears that April 27, 1895, the plaintiff in the action filed in the Jefferson Circuit Court, law and equity branch, of which S. B. Toney is judge, his petition, and moved the court for an order upon John S. Cain, clerk, to determine by lot whether the action should be assigned to law and equity or common pleas branch. Thereupon the judge, first overruling demurrer to the petition filed by Cain, peremptorily ordered him to so determine by lot to which of the two branches the action should be assigned. And on the same day he did, in the mode hereinafter described, determine the action should be assigned to law and equity branch.
Now there are before this court two petitions filed April 30, 1895, in one of which we are asked to issue a writ of prohibition forbidding S. B. Toney, judge of law and equity branch of the Jefferson Circuit Court, to try said action, or to make any orders therein; and in the other we are asked to issue a writ of mandamus requiring Emmet Field, judge of common pleas branch, to proceed and try the pending motions, and ultimately the action.
It is contended by plaintiffs in this proceeding, defendants below, that W. R. Abbott, having been by statute invested, as special judge, with all powers of the regular judge, was authorized to make the order transferring the action to the common pleasbranch, which thereby acquired complete and exclusive jurisdiction. Defendant here, plaintiff below, contends that according to rule 19, adopted by the four judges in general term, as they were authorized by statute to do, W. R. Abbott as special judge was required, and had power, to do no more than cause the fact that he could not properly preside in the action to be noted of record; and that being done, duty devolved upon the clerk to determine by lot to which of the other two branches having jurisdiction of civil actions it should be assigned.
Sec. 970, Kentucky Statutes, provides generally that if the person first elected to act as special judge of a circuit court fails or refuses to act, or can not properly preside, another election shall be held in like manner from time to time until a suitable person is chosen who can and will preside. But evidently that section does not apply to a court like the Jefferson Circuit Court, composed, in virtue of the constitution as well as statute, of four judges.
Sec. 1025, being part of sub-division 4, chap. 35, title of which is "Courts having Four Judges," provides that litigation prosecuted in branches other than the criminal branch shall be divided between them according to rules of court to be made in general term, and prescribes the particular mode by which actions are to be assigned to the several branches in case such rules are not, or until they are adopted. The action was, according to rule 1, which is substantially like the statutory mode, first assigned to the chancery branch, and there is no question of it having been properly done.
Sec. 1027 also authorizes rules made in general term for transfer of causes or issues, except criminal causes, from one branch to another, where by reason of the nature of the cause or issue, or disability of the judge of the branch to which it had been originally assigned, such transfer may be proper.
It is, however, further provided that in causes which have been once transferred, if the presiding judge can not sit a special judge shall be chosen by the attorneys of the court in attendance not interested, nor of counsel, to preside.
Sec. 1028 is as follows: "No proceedings...
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