Smith v. Harrod
| Decision Date | 09 May 1911 |
| Citation | 115 P. 1015,29 Okla. 3,1911 OK 192 |
| Parties | SMITH v. HARROD. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
That portion of section 9, art. 7, of the Constitution, providing for the election of district judges pro tempore by the members of the bar of the district present where a regular judge is disqualified in any cause, is not self-executing.
Where a cause is tried to the court without a jury, and a party desires the conclusions of fact and law found by the court stated separately in writing by the court, request therefor should be made before the finding of the court is made and filed in the cause.
Error from District Court, Pottawatomie County; W. M. Engart, Judge pro tem.
Action between Lee Smith and Stelphen J. Harrod. From the judgment Smith brings error. Reversed.
Joe M Adams, B. B. Blakeney, and J. H. Maxey, for plaintiff in error.
J. H Woods and W. S. Pendleton, for defendant in error.
The regular judge of the court below in which this cause was tried was disqualified to sit and preside in this action, and the court made an order directing the election of a special judge by the members of the bar of the district present; and the cause was tried before the special judge so elected.
Plaintiff in error has objected to the election of a special judge and to the judge elected upon the ground that that portion of section 9, art. 7, of the Constitution, authorizing the election of a judge pro tempore by the members of the bar of the district present to try any cause in which the regular judge shall be disqualified, is not self-executing. Upon the authority of Spade v. Morton, 114 P. 724, this contention must be sustained. Prior to an act of the Legislature prescribing the procedure for the election of a judge pro tempore by the members of the bar, this provision was not self-executing, and the special judge elected was without authority to sit in the case. Until this provision was made effective by an act of the Legislature, prescribing the procedure, the remedy of a party in a cause in which the regular judge was disqualified was either to agree upon a judge pro tempore or to have some other district judge of the state designated by the Chief Justice of the Supreme Court to try such case. Section 9, art. 7, Const.
By a second assignment of error, complaint is made of the action of the court in overruling a motion for continuance. Since on account of the error already suggested, this cause must be reversed and a new trial had, and it does not appear that the facts set up in the motion for continuance are likely to occur in the subsequent proceedings in the cause, it is unnecessary to consider this assignment.
Plaintiff in error also complains that the findings of fact and conclusions of law were not separately made and stated by the trial court to whom the cause was tried without a jury. The complaint is not that the court made a general finding, but that in making...
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