Parvin v. Johnson

• Decision Date: 07 January 1922
• Docket Number: 23,449
• Citation: 203 P. 721,110 Kan. 356
• Parties: E. H. PARVIN, Appellant, v. CHARLES O. JOHNSON, Appellee
• Court: Kansas Supreme Court

203 P. 721

110 Kan. 356

E. H. PARVIN, Appellant, v. CHARLES O. JOHNSON, Appellee

No. 23,449

Supreme Court of Kansas

January 7, 1922

Decided January, 1922

Appeal from Hodgeman district court; ALBERT S. FOULKS, judge pro tem.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. JUDGE PRO TEM--Failure to Take Official Oath--De Facto Judge. One who exercises the powers and duties of judge pro tem under an election by the bar of the district court and with the recognition and acquiescence of the other officials of the court, is a de facto judge and his official acts are valid and binding notwithstanding his failure to take the oath of office as provided by statute.

2. SAME--New Trial Erroneously Granted. In a case tried before a judge pro tem defendant failed to appear and judgment went against him. Four days thereafter he filed a motion to set aside the judgment and grant a new trial. The judge pro tem sustained the motion on the sole ground that the judgment was void because of his failure to take and subscribe to his oath of office. Held, error.

L. A Madison, and Carl Van Riper, both of Dodge City, for the appellant.

Albert H. Wilson, of Jetmore, for the appellee.

OPINION

PORTER, J.:

This is an appeal by the plaintiff from an order setting aside a judgment in his favor and granting a new trial. The action was one to recover damages to growing crops, stacked hay and other feedstuff by trespassing cattle belonging to defendant. Plaintiff asked for damages in the sum of $ 2,740. The defendant answered with a general denial and a cross-petition alleging that on the 15th day of November, 1918, plaintiff took up fifty-four head of defendant's cattle claiming to act under the provisions of the herd law, which was in force in Hodgeman county, but that plaintiff commenced no action to recover damages until August 28, 1919; that in November, 1918, the defendant went to the plaintiff's place where the cattle were confined and demanded possession of them and offered to pay for all damages committed by them but that plaintiff refused payment and refused to allow defendant possession of the cattle; that the cattle were large steers which the defendant expected to sell and market about December 1, 1918; that plaintiff retained possession of them through the winter of 1918-'19, and failed to properly feed and care for them and afterwards turned them loose with the result that about 20 head of them died or strayed away and were not recovered by the defendant. He prayed for judgment against the plaintiff in the sum of $ 3,090 and costs. The plaintiff filed a general denial in reply.

Before the next term of court defendant's attorney, Honorable Roscoe H. Wilson, had become the district judge and was disqualified to sit in the case. The Honorable Albert S. Foulks, who had previously been the district judge, was elected by the bar of Hodgeman county judge pro tem to try all cases in which Judge Wilson was disqualified. On the 16th day of December, 1920, this case was called for trial. The defendant was not present, and plaintiff took judgment for the full amount prayed for in his petition. Four days later the defendant filed a motion asking for a new trial, alleging accident and surprise which ordinary prudence could not have guarded against; illness whereby he was not afforded a reasonable opportunity to be present at the trial; and as a further ground he alleged that before proceeding to the trial of the case, the judge pro tem failed to take and subscribe the oath required to be taken by the regular judge. The judge pro tem, at chambers, after hearing the evidence offered in support of the motion entered an order setting aside the judgment and granting a new trial, on the sole ground that he had failed to take and subscribe to the oath in accordance with provisions of section 2964 of the General Statutes of 1915.

The only question raised by the appeal is whether the ground upon which the court sustained the motion was a sufficient cause for setting aside the judgment and granting a new trial. The ruling cannot be upheld. There was nothing irregular in the manner of the selection of the judge pro tem, and it has been held that a judge pro tem, who assumes to act, is a de facto judge and that his acts are valid and binding. In In re Hewes, 62 Kan. 288, 62 P. 673, it was ruled:

"The judgments of a judge pro tem, elected by the bar are not void because he failed to qualify by taking the oath of office." (syl.)

It was said in the opinion that the authority of the judge pro tem to hold court was derivable from his election by the members of the bar. "His failure to subscribe to an oath of office as judge pro tem, if he did fail, did not render his...