State ex rel. Butler v. Williams

• Decision Date: 22 January 1887
• Citation: 2 S.W. 843,48 Ark. 227
• Parties: STATE EX REL. BUTLER v. WILLIAMS
• Court: Arkansas Supreme Court

2 S.W. 843

48 Ark. 227

STATE EX REL. BUTLER v. WILLIAMS

Supreme Court of Arkansas

January 22, 1887

PETITION for Prohibition.

Cause dismissed.

Harrison & Harrison, for petitioner.

The terms of the circuit courts are fixed by law, and it is not in the power of the judges to change them. Under Mansf. Dig sec. 1476, the term may be continued after the time for holding the next regular term in another county in the circuit, as held in 32 Ark. 278, but as declared by sec 1481, "No such adjourned session * * * * shall interfere with any other courts to be held by the same judge." This provision is mandatory. See Cooley Const. Lim., 93.

The attorneys had no right to elect a judge at a special adjourned session. See Const., art. 7, sec. 21.

The motion for a new trial not having been disposed of during the term, the judgment became final, and the court had no jurisdiction to again try the cause. 6 Ark. 282; 5 ib., 709; 14 ib., 203; ib., 568; 6 ib., 100; 12 ib., 95; 22 ib., 176.

The relator having filed a motion to strike the case from the docket, did all that was necessary for him to do, or that could be done, and a writ of prohibition is his only remedy.

Jones & Martin, for respondent.

Sec 1481, Mansf. Dig., means that the court shall not be adjourned to any day fixed by law for the beginning of the term of any other court in the circuit.

Sec. 1476, gives the right of adjournment beyond the day fixed by law for the beginning of another court. 2 Ark. 229; 32 ib., 278; 39 ib., 448.

Under sec. 21, art. 7, Const., the attorneys had a right to elect a special judge.

OPINION

SMITH, J.

On the 4th of August, 1885, in Desha circuit court, the cause of J. M. Whitehill, plaintiff, against J. R. Butler, defendant, was tried before the Hon. John A. Williams, circuit judge, and a jury, and a verdict and judgment were given for the defendant. On the 6th of the same month the plaintiff moved for a new trial. This motion had not been disposed of, when the court adjourned over to the 8th of December, following. On the day last mentioned, the circuit judge was not in attendance, being engaged in holding the Jefferson circuit court. On the 9th of December a special judge was elected, who adjourned the court over from time to time, until the 23d of January, 1886, when the regular judge appeared, set aside the judgment previously entered in the above entitled cause, and ordered another trial.

At a subsequent term, the defendant in the action moved the court to strike the case off of the docket, upon a suggestion that the judgment had become final before the court undertook to set the same aside. This motion was denied. The defendant in that action now prays the writ of prohibition to prevent the circuit judge from taking further jurisdiction of the cause. And the question is, whether the Desha circuit court was legally in session on the 23d of January, 1886.

It is not the meeting of the judge and officers of a court at the county seat that constitutes a court, but that meeting must be at a time authorized by law. Brumley v. State, 20 Ark. 77; Osborn, ex parte, 24 Ark. 479.

The terms of the circuit court are prescribed by statute. It is provided, however, that "special adjourned sessions of any court may be held in continuation of the regular term, upon its being so ordered by the court or judge, in term time, and entered by the clerk on the record." Mansf. Dig., secs. 1476, 1481.

There is no such thing known to our laws as two circuit courts held in the same circuit at the same time, one presided over by the regular judge and the other by a special judge. Suitors are entitled to have their causes tried before the circuit judge, unless ...