Coquillard Wagon Works v. Melton, Sheriff, &C.

• Decision Date: 15 February 1910
• Citation: 137 Ky. 189
• Court: Kentucky Court of Appeals
• Parties: Coquillard Wagon Works v. Melton, Sheriff, &c.

Page 189

137 Ky. 189

Coquillard Wagon Works v. Melton, Sheriff, &c.

Court of Appeals of Kentucky.

February 15, 1910.

Appeal from Henderson Circuit Court.

J. W. HENSON, Judge.

Demurrer to petition sustained, and plaintiff appeals. — Affirmed.

CLAY & CLAY for appellants.

YEAMAN & YEAMAN and JOHN C. WORSHAM for appellees.

OPINION OF THE COURT BY JUDGE O'REAR — Affirming.

A proceeding was instituted in the Henderson county court by various petitioners under section 2380, Ky. Stat., to have established a drainage ditch, known in the record as the "Sellars Ditch." A large area was to be affected by the proposed improvement and 200 and more persons were made defendants to the proceeding. The viewers' report brought forth remonstrances from some of the parties, thus presenting an issue to be tried in the proceeding. It developed that the presiding judge of the county court was made a party, being assessed some small amount, about $15 in the event the ditch was established. Upon that fact being suggested he declined to sit in the case. Thereupon the petitioners and the remonstrants agreed upon Hon. M. C. Givins, a citizen of Henderson county, a member of the bar of Henderson, and formerly circuit judge of that district, to act as special judge of the county court in lieu of the regular judge. The result of the trial before the special judge was that the ditch was adjudged to be a public necessity, its route declared to be practicable, and the issue presented by the remonstrances as to benefits and damages was decided by the court and carried into judgment. From that judgment certain of the remonstrants prosecuted an appeal to the circuit court, as is allowed by the statute, where the case was tried anew. The judgment there also found the necessity to exist for the ditch, likewise that it was practicable, and the issues as to advantages and benefits adjudged. The case was thereupon remanded to the county court to carry into effect the judgment of the circuit court by advertising the letting of the contract to construct the ditch, and to have the costs, etc., apportioned among those affected as indicated by the judgment of the circuit court.

In the meantime Judge Givins had died. When the case came on again in the county court, the regular judge, although previously declining to sit in the case, acted as the judge in entering the necessary orders for carrying into effect the judgment of the higher court. The commissioners apportioned the costs of the proceeding and of the construction according to the reviewers' reports as modified by the judgment of the circuit court, and the contract was let for the construction. The apportioned costs were certified to the sheriff for collection, as taxes are collected, from those parties who were shown by the reviewers' reports and the final judgment of the county court to be liable therefor.

This suit was then brought in the circuit court by appellants, some 25 of the parties to the original proceeding (though neither petitioners or remonstrants), to enjoin the levy and collection of the assessments against them on the alleged ground that the judgment of the county court levying the assessment, and all proceedings under it, were void. A number of grounds were asserted in the petition of appellants as basis for this contention. The circuit court sustained a general demurrer to the petition, and, the plaintiffs electing to stand on the sufficiency of its allegations, it was dismissed, and they have appealed. In view of the fact that the able counsel for appellants present in their argument on this appeal but two of the grounds asserted in the petition, we do not notice the others. The two presented are (1) that the selection of Judge Givins as special county judge in the proceeding was unauthorized, and was contrary to the statute and void; (2) that the regular county judge, being a party in fact and in interest in the proceeding, was disqualified to act as judge of that court in that case upon its return from the circuit court, and that his judgment was void because of that fact. Ky. Stat. Sec. 1059, is relied on by appellants in support of their first ground. It reads: "Whenever the county judge, shall be absent, or unable, from any cause, to attend or hold the county court, or preside at any trial or prosecution, * * * it shall be the duty of the county clerk to at once give notice of the fact to the justice of the peace of the county residing nearest to the court-house, who shall, upon such notice, hold the court, and a justice who holds the court shall be invested for that purpose, with all the powers conferred upon the county judge, and shall for his services be paid by the county a reasonable compensation." In circuit and quarterly courts, when the regular judge is disqualified, or does not serve, the parties are authorized to agree upon another to serve as special judge. Sections 968, 1056, Ky. Stat.

Whether it is competent for parties to so agree in the county court that they would after judgment be estopped in an attack upon the proceeding collaterally is not necessary to decide in this case. Nor do we pass upon the effect of the tacit assent of the appellants, parties to the proceeding in the county court, in suffering the special judge, selected by agreement of some of the parties to the case, and not objected to by any of the parties, to preside as judge of the court. That court had jurisdiction of the proceeding and of the parties. Appellants were made parties in the manner pointed out by the statute. The question here presented is not whether they consented to a jurisdiction which had not attached; for the jurisdiction was of the court, not of the person who presided as judge of the court. It may be conceded that his selection was irregular, and was an error available to any party by objection, and upon...