Clapp v. Sandidge

• Decision Date: 24 September 1929
• Citation: 20 S.W.2d 449,230 Ky. 594
• Parties: CLAPP et al. v. SANDIDGE, Special Judge.
• Court: Kentucky Court of Appeals

20 S.W.2d 449

230 Ky. 594

CLAPP et al. v. SANDIDGE, Special Judge.

Court of Appeals of Kentucky

September 24, 1929

Original petitions for writs of prohibition by D. B. Clapp and by R N. Scott against W. P. Sandidge, to prevent defendant from trying certain cases as special judge, consolidated for hearing. Petitions dismissed.

C. C Grassham, of Paducah, and M. C. Anderson, of Wickliffe, for appellants.

W. P Sandidge, of Owensboro, pro se.

WILLIS J.

D. B. Clapp and R. N. Scott each instituted an original action in this court, seeking to obtain a writ of prohibition against Judge William P. Sandidge to prevent him from trying certain cases in the McCracken circuit court in which Clapp and Scott were interested parties. The regular judge was disqualified, and Judge Sandidge had been duly designated as special judge to try the cases. The two actions are alike, have been consolidated, and will be disposed of as one.

The first ground relied upon for the writ is that Judge Sandidge is not eligible to act as special judge of the McCracken circuit court, because he is not a member of the local bar of McCracken county. The act relating to special judges (section 971-3, Ky. St. Supp. 1928) provides that when, from any cause, a judge of a circuit court of continuous session may not properly preside in an action, a special judge may be agreed upon by the parties, or, if the parties are unable to agree, the Chief Justice is authorized to appoint as such special judge a member of the local bar. Act March 29, 1926, p. 128, c. 31, § 3. By section 4 of the act special judges of circuit courts other than courts of continuous session may be appointed by the Chief Justice, and any attorney in the state, possessing the qualifications of a circuit judge, is eligible to appointment. Section 971-4, Ky. St. Supp. 1928. It will be seen that the act made distinct provisions for the appointment of special judges in circuit courts of continuous session, and in the other circuit courts. The statute related solely to that subject, and when it was enacted courts of continuous session were already established in those counties which constituted a judicial district. Each of such districts contained a large city, and the number of practicing attorneys was so large that no difficulty was likely to be encountered in finding disinterested and qualified attorneys to serve as special judges. This court held that the appointment of a regular circuit judge from one of the judicial districts in which there was no court of continuous session conferred no right to act as special judge of a court of continuous session, and judgments of such a court rendered by a judge so appointed were erroneous and reversible on appeal. Goodloe's Ex'r v. Goodloe, 208 Ky. 189, 270 S.W. 790; Warren v. Security Trust Co., 208 Ky. 787, 271 S.W. 1074.

In 1928 the General Assembly passed an act which was entitled as an act to make all circuit courts in this commonwealth situated in any county containing cities of the second or third class, which were not then courts of continuous session, courts of continuous session for the trial of equity cases or common-law cases in which no jury trial was requested or required. Acts 1928, p. 160, c. 28. It will be seen that the act related only to certain cases pending in the circuit courts in counties containing cities of the second or third classes, and not to the court itself. It does not convert the courts in such districts into courts of continuous session. Manifestly it could not do so, since the judges of those courts must also hold regular terms of court in other counties. The act itself provides that all regular terms of court in all such counties must be held as provided by law. Obviously a circuit judge could not hold court continuously in one county, and, at the same time, hold regular terms there and in the other counties of his district, in each of which he is required by the Constitution (section 131) to hold at least three terms of court each year.

The true construction of the act is that it applies the laws governing the practice in courts of continuous session to the trial of equity cases and other cases in which a jury is not required to circuit courts in counties containing cities of the second or third class, although constituting part of a judicial district containing other counties. It does not purport to affect, and does not in fact affect, the appointment of special judges for such courts. It relates only to the trial of certain eases. It provides for trials of those particular cases at any time they may be ready and the judge available, without awaiting a regular term of the court. A construction of the act applying it to the selection of special judges for such courts would result in the anomaly of requiring the appointment of special judges of such courts for the trial of equity and nonjury cases, in accordance with section 971-3, Ky. St. Supp. 1928, whilst special judges for the trial of jury cases would have to be selected as prescribed by section 971-4, Ky. St. Supp. 1928. In practical operation it would authorize the appointment at the same time of two judges of the same court, only one of whom would be required to be a member of the local bar. Manifestly such an absurd result was not intended, and it is not required by the terms of the act. Although the language of a statute may be ambiguous, yet if it is susceptible to a construction that will render it reasonable, that construction will be adopted in preference to one making it absurd. Neutzel v. Travelers' Protective Ass'n, 168 Ky. 734, 183 S.W. 499; Frye's Gdn. v. Gamble Bros., 188 Ky. 283, 221 S.W. 870; Com. v. Ledman, 127 Ky. 603, 106 S.W. 247; Goodpaster v. U.S. Mortgage Bond Co., 174 Ky. 284, 192 S.W. 35.

The act of 1928 provides (section 3) that all laws of the commonwealth governing courts of continuous session shall govern the other circuit courts described in the act as to all cases on the equity docket or on the common-law docket except where trials by jury are demanded or ordered, which trials shall be held during the terms provided by law. That provision does not refer to the laws regulating the appointment of special judges, but requires merely that the practice in the cases enumerated shall conform as to the time and method of trial to that prevailing upon the subject...