Sherwood v. Steel
| Decision Date | 07 April 1927 |
| Docket Number | No. 4203.,4203. |
| Citation | 293 S.W. 798 |
| Parties | SHERWOOD v. STEEL et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, New Madrid County; Von Mayes, Special Judge.
Action by West Sherwood against Howard Steel and another. After judgment for plaintiff by default, defendants' motion to set aside such default and permit a defense to be made was overruled, and they appeal. Reversed and remanded.
Gallivan & Finch, of New Madrid, for appellants.
This case is not here on its merits, but on a question relative to the jurisdiction of a special judge and his alleged abuse of discretion in refusing to set aside a default judgment against appellants.
The facts on which the question of jurisdiction of the special judge rests are as follows: The regular judge of the New Madrid county circuit court was disqualified to try this case, and Judge E. P. Doris of the Twenty-Ninth circuit was called in to preside at the trial. Judge Doris appeared and assumed jurisdiction, and while he was on the bench the following record entries were made on the judges' docket:
The stipulation referred to (caption omitted) is as follows:
"Whereas, by reason of the illness of Thomas Gallavin, one of the attorneys for defendant in this case, and his inability to try this cause at this time before Hon. E. P. Doris, judge before whom this cause is pending in the circuit court of New Madrid county, Mo., and for the purpose of making disposition of this cause at this time, it is hereby stipulated and agreed by and between the parties hereto through their respective attorneys that this cause be set by Hon. E. P. Doris before Von Mayes, member of the bar of Pemiscot county, Mo., and who is enrolled as a member of the New Madrid county, Mo., bar, as special judge, to hear and try this cause, and all parties hereto consenting and agreeing for the said Von Mayes to hear said cause at such time as the said Von Mayes may fix."
Attorney Von Mayes notified counsel out of court that he would hear the case on April 26, 1926, but he did not qualify or take the bench in the case until April 26th. On that day he took the prescribed oath and assumed jurisdiction over the case and made an order setting the case for trial on the same day. Defendants were not represented in court on that day, and default was entered against them, and judgment for plaintiff followed. Counsel for defendants was out of the county on that day trying a case in another county, and immediately upon his return filed a motion to set aside the default and permit a defense to be made. This was overruled.
The first point made here is that the special judge was never invested with jurisdiction to take any steps in the case, and hence the judgment rendered by him is a nullity.
Section 2440, Stat. 1919, provides that:
* * * At the request of the judge of any circuit, any term of court or part of term in his circuit may be held by the judge of any other circuit, who shall, during the period he shall so act, possess the same powers and be liable to the same responsibilities as the judge of said circuit."
This section authorizes the judge of any circuit in the state to call in the judge of any other circuit in the state to hold a term or any part of a term of court. There can be no doubt that, when Judge Doris, judge of the Twenty-Ninth circuit, appeared at New Madrid at the request of the regular judge of that court and assumed jurisdiction of this case and took any steps in it, he, for the purposes of this case, became the judge of the circuit court of New Madrid county and became possessed of the same powers as the regular judge of said court. It necessarily follows that he could only be divested of jurisdiction in this case in the same way that the regular judge could be divested of jurisdiction. There is nothing in this record to indicate that Judge Doris ever lost jurisdiction of this case except the fact that the attorneys for both parties signed and filed a stipulation by which they agreed that the case should be tried before Von Mayes, an attorney at the bar. The right to a change of venue or a change of the person, who shall preside as judge at any term or part of term of the circuit court, is purely a right provided for by the Constitution and statutes of ...
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