Lookabaugh v. Okeene Hardware & Implement Co.
| Decision Date | 11 January 1910 |
| Citation | 106 P. 844,25 Okla. 474,1910 OK 19 |
| Parties | LOOKABAUGH v. OKEENE HARDWARE & IMPLEMENT CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
On October 26, 1906, a cause pending in the district court of B county, G., judge presiding, was submitted to the court for judgment. On the next day said court adjourned until November 19, 1906, and on that day failed to meet and adjourned by operation of law, without fixing by order of adjournment any time to, reconvene. On November 20, 1906, in the same district, the district court of G. county convened in regular term, B., judge presiding, and continued in session until December 20th, on which day it adjourned until December 26 1906. On December 21, 1906, G., as presiding judge of the district court of B. county, without order of the Supreme Court so to do, convened said court and rendered and entered judgment in said cause. Held, that the term in which said cause was submitted expired by operation of law by the commencement of the term of the district court of G. county and said judgment was coram non judice and void.
Error from District Court, Blaine County; M. C. Garber, Judge.
Action by the Okeene Hardware & Implement Company against I. H Lookabaugh. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
I. H. Lookabaugh and Dale & Bierer, for plaintiff in error.
Seymour Foose, for defendant in error.
On December 24, 1904, the Okeene Hardware & Implement Company, a corporation, defendant in error, sued I. H. Lookabaugh, plaintiff in error, in the probate court of Blaine county, upon a written guaranty, signed by himself and others, for $702.45. After motion to make more definite and certain, and demurrer filed and overruled, defendant filed answer and cross-petition, to which there was a reply, in effect, a general denial, and a trial to the court, which resulted in judgment for plaintiff and against defendant for $788.48, with interest and costs, from which he appealed to the district court. There defendant renewed said motion and demurrer, which were overruled, and exception saved, and proceeded to trial to the court, and on October 26, 1906, at the close of plaintiff's testimony, demurred thereto, which at the close of all the testimony the court took under advisement, and on December 21, 1906, overruled, and rendered judgment in favor of plaintiff and against defendant for $817.70, with interest and costs. After motion for a new trial, filed and overruled, defendant brings the case here for review.
His first contention is that said judgment is coram non judice. On this point the record discloses that on June 12, 1906, the Supreme Court of Oklahoma Territory by proper order fixed terms of the district court to begin in Blaine county, at Watonga, on Tuesday, October 2, 1906, and in Garfield county, at Enid, on Tuesday, November 20, 1906, and later assigned Associate Justice Burwell, judge of the district court, to preside in all cases in said courts, beginning on the latter date, that might come before him during the absence therefrom of Hon. M. C. Garber, the regular presiding judge. Later a similar order was made directing him to preside in the district court of Garfield county, beginning December 4, 1906, and later a similar order directing him to again preside in said court in Garfield county, beginning December 17, 1906. The record fails to disclose that Hon. B. F. Burwell presided at any time during the term of court in Blaine county beginning October 2, 1906, but shows that the same was held by Hon. M. C. Garber, the regular presiding judge of that (the Fifth) district, who tried this cause October 26, 1906, and, before judgment, on the next day adjourned said court until November 19, 1906; that on said day the sheriff, in the absence of said presiding judge, adjourned said court until November 20, 1906; that on said day, pursuant to the aforesaid order of the Supreme Court, the district court of Garfield county convened, Hon. B. F. Burwell presiding, at which time it adjourned until next day, when it reconvened and continued in session from day to day, the same judge presiding, until December 20, 1906, when it adjourned until December 26, 1906; that pending said adjournment, to wit, on December 21, 1906, the same being the "twenty-fourth judicial day" of the "October term, 1906," of the district court of Blaine county, Hon. M. C. Garber, the regular presiding judge, without order of the Supreme Court so to do, opened said court, and in the absence of both defendant and his counsel rendered and entered the judgment complained of.
Defendant contends that said judge had no right to hold said court there on that day, because he says the term had expired by operation of law on November 19, 1906. The point is well taken. On that day said court failed to convene, and therefore by operation of law adjourned...
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