Fernwood Mining Company v. Pluna

• Decision Date: 23 September 1918
• Docket Number: 119
• Citation: 205 S.W. 822,136 Ark. 107
• Parties: FERNWOOD MINING COMPANY v. PLUNA. FERNWOOD MINING COMPANY v. KUKAR
• Court: Arkansas Supreme Court

205 S.W. 822

136 Ark. 107

FERNWOOD MINING COMPANY v. PLUNA.

FERNWOOD MINING COMPANY v. KUKAR

No. 119

Supreme Court of Arkansas

September 23, 1918

Appeal from Johnson Circuit Court; A. B. Priddy, Judge; affirmed.

Judgment affirmed.

Paul McKennon and J. B. McDonough, for appellants.

1. The court lapsed on January 14, 1918, and was not in session when the judgment was rendered. The election of the special judge was void as not in accordance with law. 71 Ark. 310; 39 Id. 254; 42 Id. 126; 50 Id. 340; Act 7, § 21, Constitution.

2. The meeting of the officers of the court at a time not fixed by law was void. 20 Ark. 77; 48 Id. 227; 24 Id. 479; 22 Id. 414; 32 Id. 676; 48 Id. 151; 49 Id. 230; 2 Id. 229. The certificate of Judge Priddy and the clerk can not add to or take from the record. 197 S.W. 855; 94 Id. 685.

3. The reasons for the election of a special judge should appear of record. 4 Hill 91; Freeman on Judgm. § 121, note 1; 39 Ill. 554. The record must show full compliance with the legal requirements. Freeman on Judgments, § 121; 53 Ark. 110; 20 Id. 77; 24 Id. 479; 4 Col. 274. If the record affirmatively discloses want of authority to elect a special judge, the election is void. 119 Ind. 230. See also 122 Ga. 38; 82 Ark. 188; 129 Id. 550; 203 S.W. 704; 39 Ga. 718; 118 Id. 149; 78 N.W. 602; 83 Mo.App 370; 19 Cal. 644; 39 Ill. 554; 12 Tex.App. 261; 102 Wis. 431; 52 Kansas 1; 11 Okla. 213; 38 So. 80; 35 Id. 955.

4. The term had ended and there can not be two circuit courts at the same time in the same circuit. 129 Ark. 550; 82 Id 188; 104 Id. 629; 69 Id. 457; 49 Id. 110; 63 Id. 1; 46 Id. 110; 48 Id. 227. The term had lapsed and there could be no court held. 129 Ark. 550; 32 Id. 188; 48 Id. 151; 49 Id. 230; 2 Id. 229.

5. The election by attorneys was void. 48 Ark. 227. Mere absence of the regular judge does not authorize the election of a special judge. 48 Ark. 227; 10 A.D. 347; 52 Kan. 31; 118 Ga 149.

6. The Johnson Circuit Court was not in session at the time the judgment was rendered. Art. 7, § 21, Const., Kirby's Digest, § 1328; 87 Ark. 188.

7. There was no order changing the election of the first special judge Reynolds. Kirby's Dig. §§ 1527-1531. The record only shows that the regular judge was "absent." This is not sufficient. 79 Ark. 293; 120 Id. 530; 118 Id. 118.

8. The order adjourning the May term was illegal and not signed. Kirby's Digest § 1519.

9. The bill of exceptions was filed in time, within the 90 days.

Willard Pendergrass and Evans & Evans, for Pluna. Patterson, Moore & Klein, Heartsell Ragon and Jesse Reynolds, for Kukar.

1. The court was without power to extend the time for filing the bill of exceptions beyond the succeeding term of court. The bills of exception were not filed in time, nor were they signed in time. 53 Ark. 415; 42 Id. 491; 39 Id. 558; 58 Id. 110; 38 Id. 216, 283; 118 Id. 355.

2. The special judge was duly selected according to law. 45 Ark. 478; Art. 7, § 21, Constitution; 49 Ark. 446; 50 Id. 344; 89 Id. 34. Judge Reynolds was duly elected as was Judge Montgomery and the adjournments were duly made and legal. The proceedings were duly entered at large upon the records. 72 Ark. 320; 76 Id. 538; 79 Id. 287; 86 Id. 90; 87 Id. 52; 89 Id. 86.

3. The bill of exceptions was filed out of time. 38 Ark. 283; 45 Id. 107, 242; 51 Id. 281; 61 Id. 358. The only remedy is in chancery. 61 Ark. 341, 354; 73 Id. 556; 120 Id. 151. See also 96 Ark. 520; 51 Id. 341; 61 Id. 348; 48 Id. 355; 117 Id. 154.

OPINION

PER CURIAM:

The appellee in each of these cases recovered judgment against appellants in the circuit court of Johnson County at the December term, 1917, for damages on account of personal injuries received by appellees. Motions for new trial were filed and overruled in each case, and an order made extending the time for filing a bill of exceptions. Since the transcripts were lodged in this court, each of the appellees filed a motion to strike out the bill of exceptions and affirm the judgment on the ground that the bills of exceptions were not filed within the time required by law.

It is not contended that there is any error in the proceedings unless the bills of exceptions can be considered, and it, therefore, follows, if the bills of exception are stricken out, the judgment in each case must be affirmed.

Appellants respond with the contention, not only that the bills of exceptions were filed in apt time, but that the original judgment in each case was void because the term of court had lapsed before these trials occurred. This contention of appellants is based upon the allegation that on a day before the trials occurred the circuit judge was absent, and that the election of a special judge on that day was void, and in consequence thereof the term lapsed, and that the subsequent appearance of the judge on an unauthorized date did not constitute a legally assembled court. The facts as shown in the record are as follows:

The regular term for the Johnson Circuit Court is fixed by statute to begin on Monday, December 3, 1917, but Judge Priddy, the judge of that circuit, did not appear either on that day or the next day, and on the morning of the second day, December 4, the clerk announced to the attorneys assembled in the court room the fact of Judge Priddy's absence, and an election of a special judge was held, which resulted in the election of the Hon. Jesse Reynolds. The record recites that Judge Priddy "had failed to appear," and that the clerk proceeded to hold an election by ballot "to elect a special judge of and for said court," and that the Hon. Jesse Reynolds received all the votes cast, and was duly sworn according to law, and entered upon his duties as such special judge. An order of adjournment was entered by Judge Reynolds on that day over until Monday, December 10, on which day Judge Priddy appeared and opened the court and adjourned it over to Monday, January 14. The record shows that on the last-mentioned date Judge Priddy failed to appear to hold the court and the clerk held an election for the purpose of electing a special judge, and that the Hon. J. J. Montgomery was elected special judge, and he ordered an adjournment over to Monday, February 18th, on which date Judge Priddy appeared and opened the court and presided during the remainder of the term, including the respective days on which these cases were tried.

It is insisted in the first place that the election of Judge Reynolds was in effect for the full term of the court during the absence of Judge Priddy, and that the election of Judge Montgomery upon the failure of Judge Priddy to reappear was unauthorized and void. The governing provision of the Constitution on this subject reads as follows:

"Whenever the office of judge of the circuit court of any county is vacant at the commencement of a term of such court, or the judge of said court shall fail to attend, the regular practicing attorneys in attendance on said court may meet at ten o'clock a. m., on the second day of the term, and elect a judge to preside at such court, or until the regular judge shall appear; and if the judge of said court shall become sick or die or unable to continue to hold such court after its term shall have commenced, or shall from any cause be disqualified from presiding at the trial of any cause then pending therein, then the regular practicing attorneys in attendance on said court may in like manner, on notice from the judge or clerk of said court, elect a judge to preside at such court or to try said causes, and the attorney so elected shall have the same power and authority in said court as the regular judge would have had if present and presiding; but this authority shall cease at the close of the term at which the election shall be made. The proceeding shall be entered at large upon the record. The special judge shall be learned in the law and a resident of the State." Art. 7, Sec. 21.

The argument of counsel on this subject proceeds on the idea that the Constitution provides for two kinds of elections of special judges in the absence of a regular judge, one for the term and the other until the regular judge shall appear, and that the effect of the election in this instance was for the term, and that the appearance of the judge did not supersede the election so as to deprive the special judge thus elected of authority to serve at any other time during the term that the regular judge should be absent.

This is an entirely erroneous construction of the language of the Constitution, which means that, in the absence of the judge for any of the causes named, a special judge shall be elected in the manner pointed out to serve for the remainder of the term, unless the regular judge appears. This construction necessarily follows from the decision of this court in the case of Hyllis v. State, 45 Ark. 478, where it was held, in substance, that the powers of a special judge of the circuit court elected during a vacancy in the office of circuit judge ceased upon the appearance of the regular judge appointed to fill the vacancy, and that such special judge had no authority to preside thereafter in a case in which the regular judge was disqualified unless he was elected for that purpose. The same construction of the statute was, in part, the basis of the decision of this court in the more recent case of State v Stevenson, 89 Ark. 31, 116 S.W. 202. This court now holds, following what it conceives to be the effect of those decisions, that when Judge Priddy appeared to hold the Johnson Circuit Court on December 10th, the authority of Judge Reynolds as special judge of the court entirely ceased, and that on the failure of Judge Priddy to reappear on the next adjourned date, January 14th, an election of another special...