Goodloe's Executor v. Goodloe

• Decision Date: 27 March 1925
• Citation: 208 Ky. 189
• Parties: Goodloe's Executor v. Goodloe.
• Court: United States State Supreme Court — District of Kentucky

208 Ky. 189

Goodloe's Executor v. Goodloe.

Court of Appeals of Kentucky.

Decided March 27, 1925.

1. Judge — Governor Held Unauthorized to Appoint Regular Circuit Judge as Special Judge in Court of Continuous Session. — Act March 7, 1910 (Acts 1910, c. 3), as amended by Act March 18, 1912 (Acts 1912, c. 119), excludes circuit judges from assignment as special judges in courts of continuous session, and hence appointment by Governor of regular circuit judge as special judge of a court of continuous session is unauthorized and invalid.

2. Judges — Officer Clothed with Authority to Administer Justice by Hearing and Determining Cause Necessary to Constitute a Court. — To constitute a court, there must be an officer duly clothed by law with authority to administer justice by hearing and determining cause; if the judge is not qualified to sit, there is no court.

3. Judges — Validity of Appointment of Circuit Judge Must be Decided where Objection Promptly Made. — Where objection to qualification is promptly made, the validity of appointment of circuit judge must be decided.

Appeal from Fayette Circuit Court.

HUNT, NORTHCUTT & BUSH for appellant.

F.A. BULLOCK, O'REAR, FOWLER & WALLACE and ALLEN, BOTTS & DUNCAN for appellee.

OPINION OF THE COURT BY COMMISSIONER HOBSON.

Reversing.

Mary E. Goodloe died a resident of Fayette county the owner of an estate of value over $225,000.00 which she disposed of by her will. The will was duly probated. The executor filed this action in the Fayette circuit court to obtain a construction of the will and the direction of the court as to the discharge of his duties as executor and trustee under the will. The regular circuit court judge was disqualified to act and this fact was certified to the Governor. The Governor wrote a letter to Hon. Henry R. Prewitt, one of the circuit judges of the state, reciting the facts and appointing him as special judge. Judge Prewitt attended, filed the letter of the Governor and his commission as special circuit judge, issued to him as a regular circuit judge, took the oath and assigned the case to a day for trial. For some reason it was reassigned to another day. On that day the plaintiff appeared and filed objections to the special judge sitting in the case on the ground that he was not qualified. The court overruled the objection and proceeded to try the case and after the case was prepared for trial entered judgment against the plaintiff on the three questions on which the plaintiff sought the judgment of the court. The plaintiff appeals.

The first question to be determined is the authority of the special judge to preside. The act of March 7, 1910, (see Acts 1910, p. 20), provided in substance as follows:

Sec. 1. The regular circuit judges of the state, except in districts where courts of continuous sessions are held, are authorized to act as special judges of the circuit courts of the state. Sec. 2. In the absence of any regular circuit judge or when he cannot preside in any case, if the parties cannot agree upon an attorney who is present to act as judge and who shall receive no compensation for his services, the clerk shall at once notify the Governor who in turn shall immediately notify one of the circuit judges not engaged in holding a term of court and it shall be the duty of this circuit judge to hold the court and try the case. Sec. 3. It shall be the duty of the clerk, in districts where a court of continuous session is not held, to notify the Governor in writing immediately upon the adjournment of each term of his court and also of the time when the next term will be held. Sec. 4. It shall be the duty of the Governor to issue a commission to each of the circuit judges named in the first section, commissioning them as special judges of the state so long as they shall be regular circuit judges. The special judge must in addition to the oath prescribed by the Constitution take the oath therein provided. This oath, together with the certificate of the officer before whom it was taken showing the date thereof, shall be endorsed in writing on the commission. Sec. 5. The selection of special judges, the reason for such selection and the fact that the oath has been taken must be entered upon the order book of the court. Sec. 6. Such special judges shall respectively receive an annual salary of $1,200.00, payable monthly out of the treasury.

By the act of March 18, 1912, the second section of this act was amended and re-enacted so as to read as follows:

"Sec. 2. In the absence of the regular judge of any circuit court in this Commonwealth, except the courts of continuous session as mentioned in the first section hereof, or when he cannot preside in any particular case or cases, if the parties cannot agree upon an attorney who is present to act as judge, and who shall receive no compensation for his services, the clerk shall at once notify the Governor, who in turn, shall immediately notify one of the circuit judges mentioned above who is not then engaged in holding a regular or special term of court in his district, and it shall be the duty of said circuit judge so notified by the Governor, to hold the court, or try the case, and the judge so notified by the Governor shall have all the powers of a regular judge of said court.

"Sec. 2a. When from any cause the judge of any circuit court of continuous session being in attendance cannot properly preside in an action, proceeding or prosecution pending in said court, or if either party shall file with the clerk of the court his affidavit that the judge will not afford him a fair and impartial trial, or will not impartially decide an application for a change of venue, the parties, by agreement, may elect one of the attorneys of the court to hear and try the case proceeding or application; and if any of the parties to said action, proceeding or prosecution are nonresident defendants, who have not entered their appearance, nor have been summond, or are infant defendants, the attorney appointed to defend for such nonresidents, or the guardian ad litem for such infants, may agree with the other parties to such action, proceeding, or prosecution, upon a lawyer having all the qualifications of a circuit judge to try such action, proceeding or prosecution. If the parties cannot agree upon an attorney to act as judge, as above stated, the clerk of the court shall at once notify the Governor of the state who shall appoint as circuit judge an attorney having the qualifications of a circuit judge to try the case, and the judge so appointed shall have all the powers of the regular judge and receive the compensation hereinafter provided therefor.

"Sec. 2b. When from any cause the judge of any circuit court of continuous session fails to attend, or is unable for any reason to hold the court, the clerk of said court shall at once notify the Governor of the state, who shall appoint as circuit judge an attorney having the qualifications of a circuit judge to hold the court during the time when the regular judge shall fail to attend, or shall be, as above stated, unable to hold said court, and the judge so appointed shall hold said court, and shall have...