Okla. Transp. Co. v. Lewis

• Citation: 177 Okla. 106,58 P.2d 128,1936 OK 405
• Decision Date: 19 May 1936
• Docket Number: Case Number: 24956
• Parties: OKLAHOMA TRANSPORTATION CO. v. LEWIS
• Court: Supreme Court of Oklahoma

1936 OK 405

58 P.2d 128

177 Okla. 106

OKLAHOMA TRANSPORTATION CO. v. LEWIS

Case Number: 24956

Supreme Court of Oklahoma

Decided: May 19, 1936

Syllabus

¶0 JUDGES - TRIAL - Trial by District Judge Outside His District After Expiration of Period for Which He Was Formally Assigned - Judgment Held not Void Where Presiding of Judge Was Acquiesced in.

A district judge who is authorized and assigned by the Chief Justice of this court to go to a county outside of his regular district and there hold court as a substitute or special judge may become a de facto judge of that court when he continues to there hold court after the expiration of the period of days for which he was formally assigned to preside over such court, and if the plaintiff in an action then presents his cause and tries the same to a conclusion, resulting in an adverse jury verdict and judgment, without questioning the authority or power of the special judge, such judgment is not void for lack of power in the judge to render it.

Appeal from District Court, Oklahoma County; R.P. Hill, Judge.

Action by John N. Lewis against Oklahoma Transportation Company. Following verdict and judgment for defendant there was a order vacating the judgment as being void. From that order the defendant appeals. Reversed.

George F. Short and Welcome D. Pierson, for plaintiff in error.

O.A. Cargill and W.R. Graalman, for defendant in error.

WELCH, J.

¶1 This is an appeal from an order vacating a judgment, and the ultimate question presented is whether the former judgment is void. It is urged to be void because a nonresident district judge presided over the trial after his assignment to hold court in Oklahoma county had expired.

¶2 The facts are that Judge John L. Norman, regularly elected judge of the Twenty-Seventh judicial district, held court in Oklahoma county during two weeks in December, 1931, but his assignment by the Chief Justice of this court only covered one week. After the expiration of the assignment on Saturday, Judge Norman continued to hold court during the following week and presided in the trial of this action. The plaintiff here sued for damages for personal injuries. When the case was called for trial and the parties and their attorneys reported to the courtroom where they were directed. Judge Norman occupied the bench and inquired if the parties were ready, to which the parties or their attorneys replied in the affirmative. It seems that all of the attorneys, knowing that Judge Norman was a district judge, and that he had theretofore been assigned, assumed, as did the judge himself, that he was then regularly assigned to hold court in Oklahoma City. There was no objection to his presiding as judge. He directed that a jury be drawn, and the trial proceeded and was concluded on the following day by verdict for the defendant, followed by judgment accordingly. Plaintiff in three days filed a motion for new trial, and a few weeks later filed motion to vacate the judgment, alleging it to be void. That motion was heard and considered by Judge Hill, who held that the judgment rendered by Judge Norman was void because he was not regularly and properly assigned, and because he was not affirmatively agreed upon by the parties as a special judge.

¶3 On appeal the defendant contends that Judge Norman was accepted and permitted by the parties to try the case without objection, and became and was a de facto judge of the court, or special judge, fully pretending to act as such, and did so act, and that the judgment rendered by him on the jury verdict is not void.

¶4 During the past several years the congested docket of the district court of Oklahoma county has made it necessary to resort frequently to the assigning of other district judges of the state to hold court there. Prior to the trial of this cause the Chief Justice had assigned many judges to render such services, and Judge Norman himself had been repeatedly so called to hold court in Oklahoma county; all this was well known to plaintiff's counsel, if not to plaintiff himself, and we are impressed with the argument that when Judge Norman proceeded to hold court the second week, believing and assuming that his assignment still operated, and when the parties and their attorneys appeared in court believing and assuming Judge Norman to be regularly assigned to hold court on those precise days, and when the plaintiff presented his cause of action and sought judgment before Judge Norman as the presiding district judge, that Judge Norman was then the de facto judge or special judge of the court, and the judgment was not void. All knew him as a district judge, subject to assignment to Oklahoma county, where he was then in complete good faith acting as an assigned judge, the only defect in his full authority being that the term stated in his assignment did not fully cover the term of his holding court and his presiding in the trial of this cause.

¶5 The exact situation has not heretofore been presented to this court, but a kindred question was passed upon by the Criminal Court of Appeals of this state in Layne v. State, 23 Okla. Cr. 36, 212 P. 328. There the term for which the nonresident judge was assigned expired at the end of the day on Saturday. On that day he was engaged in the trial of a criminal case and a new assignment was issued by the Chief Justice beginning on the following Monday. The defendant was charged with a capital offense, and on the intervening Sunday the jury was in custody of the court officers, and on Monday the trial was resumed, and upon conclusion some days later resulted in a conviction. The Criminal Court of Appeals held that on the intervening Sunday the nonresident judge "was probably a de jure judge during the intervening Sunday" or "at least a de facto judge during this Sunday, with power to supervise and control the jury and other court officers," and it was held in the third paragraph of the syllabus as follows:

"A judge de facto is one acting with color of right and who is regarded and has the reputation of exercising the judicial functions he assumes."

¶6 In the body of the opinion it was there said:

"For the reasons stated we think the special assigned judge was a judge de jure on the Sunday in question; but, if that conclusion is incorrect, he was at least a judge de facto on that day, and until the trial was concluded. A judge de facto is one acting with color of right, and who is regarded and has the reputation of exercising the judicial functions he assumed. The acts of a de facto judge are valid so far as they affect the rights of litigants who acquiesce in judicial proceedings under the supervision of such judge.

...