Gresham v. Ewell

• Decision Date: 06 June 1888
• Citation: 85 Va. 1,6 S.E. 700
• Parties: Gresham v. Ewell, Judge.
• Court: Virginia Supreme Court

6 S.E. 700

(85 Va. 1)

Gresham

v.Ewell, Judge.

Supreme Court of Appeals of Virginia.

June 6, 1888.

Judge—Special Judges—Authority to Act—What Record must Show.

Acts Va. 1884, p. 748, provide that if any county judge be unable to attend a regular term of his court, or be prevented from sitting during the whole or any part thereof, or if any county judge be so situated as to render it improper in his judgment for him to decide or preside at the trial of any cause, and it be so entered of record, the judge of any other county court may hold said term or any part thereof. The judge of the county court of one county sat as judge of the county court of another county at the trial of a cause, no order being entered of record that the regular judge (who was personally present) was so situated as to render it improper, in his judgment, for him to sit at the trial of said cause. Held, that the judgment in said cause was void, and the enforcement thereof should be restrained by a writ of prohibition. Lewis, P., dissenting.

Error to circuit court, Lancaster county.

Appellant presented his petition to the judge of the circuitcourt of Lancaster county, praying for a writ of prohibition against a judgment of the county court of said county. The writ was refused, and the petitioner brought error.

J. B. Sims, for plaintiff in error.

B. Kan. Wellford, for defendant in error.

Lacy, J. This is a writ of error to a judgment of the circuit court of Lancaster in prohibition, rendered May 5, 1888, in vacation, refusing the writ upon the petition of the plaintiff in error, who prayed for the same against a judgment of the county court of Lancaster rendered at the September term, 1887. The case was a contested election for the office of clerk of said county court. Upon the trial the election was declared invalid, and the office of clerk of the county court of Lancaster declared vacant. This judgment is claimed to be void, because it was not rendered by any person authorized to render such judgment. It is conceded that the judge of that court did not preside at the trial of the case, although personally present. It is also conceded that the county judge of another county did preside at the said trial. It is further conceded that the said visiting judge went upon the bench, and presided and acted as judge, and rendered said judgment, without any order from the judge of that county entered upon the record that he was so situated as to render it improper in his judgment for him to decide or preside at the trial of the cause in question. It is admitted that the law upon the subject provides as follows: "If any judge of the county court be unable or fail to attend a regular term of his court, or be prevented from sitting during the whole term or any part thereof; or if any judge of a county court be so situated as to render it improper in his judgment for him to decide or preside at the trial of any cause, and it be so entered of record; or if from death or any other cause there be no judge of such county court, —the judge of any other county court may hold said court either for the whole term or any part thereof." Act March 14, 1884, p. 748. The principles governing the issuance of the writ prayed for have been set forth in a recent decision of this court reported in Nelms v. Vaughan, 5 S. E. Rep. 704, and cases cited, and are familiar and well understood. It is not pretended that the cause originally, nor that some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court. The jurisdiction of the county court is conceded.

The jurisdiction of the court being admitted, it is nevertheless claimed that the court as organized had no jurisdiction for any purpose whatever; that the supposed judge was without jurisdiction in that county, his jurisdiction being expressly limited by law to some other subdivision of the state; and that the lawful judge not being absent, but present, and no order having been entered of record, that he was so situated as to render it improper in his judgment forhim to decide or preside at the trial of that case; that he exceeded his jurisdiction in acting as judge without the authority of the law, and the said judgment is without authority, and null and void. And this seems to be clearly so. He was not authorized to sit in that court except under certain circumstances prescribed by law, and the law's prescript was not complied with. He does not appear to have had any more right to preside and render a judgment in that court than any other person there present not the judge of that court. A lawyer may preside as judge in this state in some of the courts, upon the entry of a certain order provided by law, but that could not be held to vest any lawyer with such authority, and his rendition of a judgment without it would doubtless be held a nullity. A county court judge may sit as judge in a cause in another county when the lawfully qualified judge of that county is absent or fails to attend or is situated in a prescribed way, and it be entered of record. It is only when such entry is made that the law gives the authority; the jurisdiction and authority from any other source is merely self-assumed. The legislature doubtless had reasons satisfactory to that body when this provision was inserted in the law; for the provision, "and it be so entered of record, " is an amendment to the former law. But, be that as it may, so the law is written, and I see no principle which can exempt this county judge, or this cause, or these parties, from its operation; and the writ should be granted, and the order of the circuit court of Lancaster reversed and annulled, and the county court of Lancaster prohibited from enforcing the said judgment, which, having been rendered without the authority of the law, by a person not authorized to render such judgment, is in excess of jurisdiction, null, and void, and may be so regarded whenever called in question.

Hinton, J., absent.

Lewis, P., (dissenting.) As the opinion of the court in this case proceeds upon the ground that the judgment of the county court is void, I am constrained to dissent. The judgment is held to be void, because no entry was made on the record assigning a reason for the failure of the regularly elected and qualified judge of the court to sit in the case in which the judgment was rendered; and this ruling is based upon the act of March 19, 1884, now carried into section 3049 of the Code of 1887. I do not so construe the statute. In my opinion, such entry is made necessary by the statute only when the judge of the court is so situated as to render it improper in his judgment for him to preside at the trial. This seems to me to be so obviously the correct construction of the statute as to admit of no doubt. Suppose, for example, the judge from sickness is unable to attend, or for any reason is prevented from attending, the court, how, in such a ease, if the view taken in the opinion of the majority of the court be correct, is the court to be opened at all? And yet, if I correctly understand that opinion, an entry of some sort on the record is essential to give authority to another county judge to hold the court in any case. Authority from any other source, it is said, is self-assumed. Surely this could not have been the intention of the legislature. It is, moreover, assumed in the opinion that the judge of the court was present, though not presiding, during the trial. Indeed, it is said that the fact of his presence at the trial...