Lacy v. Barrett

• Decision Date: 30 April 1882
• Citation: 75 Mo. 469
• Parties: LACY v. BARRETT, Appellant.
• Court: Missouri Supreme Court

75 Mo. 469

LACY

v.BARRETT, Appellant.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Lewis Circuit Court.--The case was tried before GEORGE ELLISON, ESQ., sitting as Special Judge.

REVERSED.

N. Rollins for appellant.

HENRY, J.

This was a proceeding by scire facias, in the circuit court of Lewis county, to revive a judgment rendered by that court in favor of plaintiff against defendant, on the 15th day of September, 1868. At the March term, 1879, of said court, it appearing that Jno. C. Anderson, judge of the Lewis circuit court, had been an attorney in the cause, and the attorneys for the respective parties being unable to agree upon a member of the bar to sit as special judge to try it, the court made an order of record for an election by the bar of a special judge, whereupon an election was held, which resulted in the choice of Jas. G. Blair, a member of that bar, as such special judge. Judge Anderson thereupon stated that Mr. Blair had been an attorney in the cause, and was, therefore, disqualified to act as special judge, and of his own motion, declared the election void, and directed another to be held. To this defendant objected. Another election was then held and George Ellison, Esq., was selected, and thereupon defendant filed his motion to suspend all further proceedings in the cause, and restore it to the place upon the docket which it occupied and the condition in which it stood before the order for the election of a special judge was made, on the ground that Mr. Blair was duly elected, and had not declined to serve, or been objected to by either party, and that Ellison was not duly elected; said motion was overruled. The cause was then tried before Mr. Ellison as special judge, and resulted in a judgment in favor of plaintiff reviving said judgment. The defendant filed his motion in arrest, alleging that the special judge who tried the cause had no jurisdiction, not having been legally elected as such special judge. This motion was overruled, and defendant has brought the cause here by appeal.

The statement of the case indicates the only question presented for determination. By the act of the general assembly of March 19th, 1877, it was provided that: “Whenever the judge, from any cause, shall be unable to hold any term, or part of term of court, and shall fail to procure another judge to hold said term or part of term, or if the judge is interested, or related to, or shall have been counsel for either party, or when the judge, if in attendance, for any reason cannot properly preside in any cause or causes pending in such court, and the parties to such cause or causes fail to agree to select one of the attorneys of the court to preside and hold court for the trial of such cause or causes, the attorneys of the court who are present, but not less in number than five, may elect one of its members then in attendance, having the qualification of a circuit judge, to hold the court for the occasion.” Section 3 provides that: “The election shall be held by the clerk of the court, who shall, in case of a tie, cast the deciding vote.” By section 4, if the person first elected to act as special judge fails or refuses to act,...