Dauwalter v. Missouri Pac. Ry. Co.

• Decision Date: 08 January 1906
• Citation: 92 S.W. 516,115 Mo. App. 577
• Parties: DAUWALTER et al. v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

92 S.W. 516

115 Mo. App. 577

DAUWALTER et al. v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

January 8, 1906.

JUDGES — CALLING IN JUDGE OF ANOTHER CIRCUIT — AUTHORITY.

The ground assigned by a circuit judge for calling in a judge from another circuit to try a case that he "will be unable to try the case" on the date set for its trial, though failing to state the reason of his inability, is sufficient to authorize him to call in another judge under Rev. St. 1899, § 1678, providing that when any judge shall "for any cause" be unable to hold court, he may call in the judge of another circuit, and section 1679, providing that when the judge for any cause shall be unable to hold court and shall fail to provide another judge, or "for any reason cannot proceed in the cause," a member of the bar may be chosen to act."

Appeal from Circuit Court, Cooper County; Wm. H. Martin, Judge.

Action by John S. Dauwalter and another against the Missouri Pacific Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Martin L. Clardy and John Cashman, for appellant. John Cosgrove, for respondents.

BROADDUS, P. J.

The plaintiffs sued defendant as common carrier for the value of certain goods alleged to have been lost in transit. The action was instituted before a justice of the peace, where plaintiffs obtained a judgment, and defendant appealed.

After the cause had been appealed to the circuit court, defendant made an application for a continuance, which on the 3d day of March, 1905, was overruled, and the case was set for trial March 16, 1905, by request to be tried by Judge Samuel Davis because the regular judge would be unable to try the case on said date. When the cause was called for trial, the defendant objected to the Hon. Samuel Davis, who was the regular judge of the Fifteenth judicial circuit, of which Cooper county was not a part, but was a part of the Fourteenth judicial circuit, of which the said W. H. Martin was the regular judge. Certain specific objections were made to Judge Davis trying the case, viz.: Because it did not appear that Judge Davis had been called to sit as judge on account of the sickness, absence, or inability of said Judge Martin to hold said term, or part thereof; and because it did not appear that said Davis had been elected to hold such term, or part thereof, or that he had been agreed upon by the parties as special judge to try the cause. Defendant's objections were overruled by the court, Judge Davis presiding. Whereupon, defendant excepted to the action of the court and withdrew from further appearance in the case. After which the cause proceeded to trial. The finding and judgment being for the plaintiffs, defendant appealed.

The only question presented for consideration is: Was Judge Samuel Davis authorized to try the cause? The defendant contends that the matter was coram non judice. The case of Bank v. Graham, 147 Mo. 250, 48 S. W. 910, among others, is cited in support of defendant's contention. The facts of that case were that in the suit of Bank against Donnell, a plea in abatement to the attachment pending was tried before Judge Rucker, the regular judge; whereupon, a jury was impaneled before him to try the cause upon its merits. This was on Friday, and as the circuit court at Salisbury in Chariton county in his district would begin on the succeeding Monday, he did not believe he would get through with the trial on its merits without discommoding him, as he desired to return to his home at Keytesville before going to Salisbury on the Monday following for the opening of his court at that place. Whereupon, the parties agreed to try the cause before the Hon. J. F. Graham, sitting as a special judge. The evidence showed that Judge Rucker was not disqualified and that counsel on both sides preferred that he should try the cause, and that it was only at his urgent request they agreed to excuse him. It was held that the special judge acted without authority as it did not appear that Judge Rucker was unable to...