City of Shawnee v. Farrell
| Decision Date | 23 November 1908 |
| Citation | 98 P. 942,22 Okla. 652,1908 OK 233 |
| Parties | CITY OF SHAWNEE v. FARRELL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
After he has ceased to sit as a court, a judge pro tempore has no power to extend the time for making and serving a case-made in an action tried before him; such an extension can only be granted by the regular district judge, who is in fact in possession of the office.
[Ed Note.-For other cases, see Judges, Cent. Dig. § 103; Dec Dig. § 25. [*] ]
Error from District Court, Pottawatomie County; J. H. Wahl, Special Judge.
Action by James T. Farrell against the City of Shawnee. Judgment for plaintiff, and defendant brings error. Dismissed.
F. H Reily and P. O. Cassidy, for plaintiff in error.
B. B Blakeney, for defendant in error.
The motion to strike the case-made from the files and dismiss the appeal in the above-entitled cause must be sustained. The cause was tried in the district court of Pottawatomie county before Hon. J. H. Wahl, acting as judge pro tempore. On the 4th day of January, 1908, judgment was rendered therein in favor of the defendant in error, plaintiff below, a motion for a new trial overruled and the plaintiff in error, defendant below, was allowed 30 days in which to make and serve a case-made for the Supreme Court; 10 days were allowed to suggest amendments, case-made to be settled and signed upon 5 days' written notice by either party. On the 27th day of January, 1908, the Hon. J. H. Wahl, the former judge pro tempore, made an order extending the period for making the case-made for 30 days from and after the time first allowed and giving the plaintiff 10 days thereafter in which to suggest amendments thereto, the same to be signed and settled on 5 days' written notice by either party. The case-made was signed and settled by "J. H. Wahl, Special Judge," on the 28th day of February, 1908, which would be out of time unless the former judge pro tempore had authority to make the order granting the extension.
The authorities seem to be uniformly to the effect that a judge pro tempore is without power to enter an order extending the time to make and serve a case-made for the Supreme Court after he has ceased to sit as a court. A., T. & S. F. Ry Co. v. Leeman, 5 Kan. App. 804, 48 P. 932; A., T. & S. F. Ry. Co. v. McClure, 5 Kan. App. 882, 48 P. 1117; Hulme et al. v. Diffenbacher, 53 Kan. 181, 36 P. 60; Wallace v. Caldwell, 9 Kan. App. 538, 59 P. 379. The first paragraph of the syllabus in the case of A., T. & S. F. Ry. Co. v. Leeman, supra, reads as follows: "After he has ceased to sit as a court, a judge pro tem. has no power to extend the time for making and serving a case-made in an action tried before him; such an extension can only be granted by the regular district judge, who is in fact in possession of the office." In Wallace v. Caldwell, supra, Dennison, P.J., states the rule as follows: "Slight diligence in examining the authorities would have shown that the judge in possession of the office, or the court, at the time the extension was made, was the proper person or tribunal to extend the time, and that a judge, or a judge pro tem., after his term of...
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