State v. Fidelity & Deposit Co.

• Decision Date: 01 February 1909
• Parties: STATE ex rel. AMERICAN NAT. BANK OF LOUISVILLE, KY., v. FIDELITY & DEPOSIT CO.
• Court: Missouri Court of Appeals

117 S.W. 618

136 Mo. App. 330

STATE ex rel. AMERICAN NAT. BANK OF LOUISVILLE, KY., v. FIDELITY & DEPOSIT CO.

Kansas City Court of Appeals. Missouri.

February 1, 1909.

Rehearing Denied March 29, 1909.

1. JUDGES (§ 15) — ELECTION OF SPECIAL JUDGES—STATUTORY AUTHORITY.

Where the judge of a division of a county circuit court did not request the judge of another division to hold court for him on account of illness, though authorized so to do by Laws 1901, p. 119 (Ann. St. 1906, § 1734), and Laws 1905, p. 123, § 7, it was proper to elect a special judge, as authorized by Rev. St. 1899, § 1679 (Ann. St. 1906, p. 1220).

2. JUDGES (§ 18)—POWER TO CALL IN OTHER JUDGE.

The court record need not show the reason why a judge of a division of a county circuit court called in the judge of another division to hold court for him, as authorized by Laws 1901, p. 119 (Ann. St. 1906, § 1734), and Laws 1905, p. 123, § 7, since the statutory cause will be presumed.

3. JUDGES (§ 16)—POWER TO CALL IN OTHER JUDGE.

A regular circuit judge who calls in another judge to hold court for him thereby terminates the authority of a special judge elected, as authorized by Rev. St. 1899, § 1679 (Ann. St. 1906, p. 1220).

4. JUDGES (§ 25)—POWER TO CALL IN OTHER JUDGE.

A judge called in at the request of the regular judge to hold court has authority over a cause tried by him until the motions after the trial are disposed of, though the regular judge appears and holds court.

5. APPEAL AND ERROR (§ 345)—TIME WITHIN WHICH TO APPEAL.

A judge called in at the request of the regular judge tried a cause. A motion for new trial remained undisposed of at the time the court adjourned to the next regular term. At the next regular term the judge overruled the motion, and at a subsequent term the regular judge overruled the motion. Held, that the proper time within which to appeal the case was during the term at which the motion was first overruled.

Appeal from Circuit Court, Jackson County; Hermann Brumback, Judge.

Action by the State, on the relation of the American National Bank of Louisville, Ky., against the Fidelity & Deposit Company. From a judgment for plaintiff, defendant appeals. Dismissed.

Karnes, New & Krauthoff, for appellant. Thos. T. Crittenden, Elijah Robinson, and Harris Robinson, for respondent.

ELLISON, J.

This action was instituted on an attachment bond; the defendant, Fidelity & Deposit Company of Maryland, being surety. The judgment was for plaintiff in the trial court. Plaintiff has filed a motion to dismiss the appeal on the ground that it was not taken during the term at which the motion for new trial was overruled.

It appears that the Jackson county circuit court at the time of the trial was composed of five divisions; each division being presided over by a different judge. This cause was pending in division No. 2, of which Hermann Brumback was the judge. On November 12, 1906, during the October term, Judge Brumback, as the record shows, was unable to hold court on account of sickness. The record also showing that he had not procured another judge to hold the court, the clerk, under the statute, held an election by the bar, when Charles W. German, Esq., was elected. German held the court for about two weeks, when on the forty-fifth day of the term, as the record recites, court met pursuant to adjournment, and was held by Judge Park "at the request of Judge Brumback, the regular judge of this division." Judge Park was the regular judge of division No. 1 of the Jackson county circuit court, and he held court under this request of Judge Brumback for near two weeks, when the latter resumed his duties, and Judge Park retired to his own division. During the time of Park holding the court for Brumback this case was tried. The trial having resulted in plaintiff's favor, the defendant surety company in due time filed its motion for a new trial. The motion was not disposed of, and afterwards the term was adjourned by Judge Brumback to the regular January term, 1907, which had the effect of continuing the case with the motion for new trial to that term. At the opening and during the January term Judge Brumback presided, until the fifty-third day, when he left the bench, and at his "request" Judge Park again presided, "while the following proceedings are had and made of record." A part of such proceedings was the motion for new trial in this case. It was argued before Judge Park and overruled by him on the fifty-third day of the January term (March 21, 1907), and no appeal was taken. On overruling the motion for new trial Judge Park retired, and Judge Brumback resumed the bench. At a subsequent term, more than a year thereafter, viz., on the 2d of April, 1908, Judge Brumback presiding, the motion for new trial was overruled by him, and at that term an appeal was taken, being the one now before us. The different divisions of the circuit court of Jackson county have been brought into existence by different acts of the Legislature which enactments were chiefly made necessary by the necessity which the Legislature saw for increasing the number of judges. Laws 1901, p. 119 (Ann. St. 1906, § 1734), and Laws 1905, p. 123, provided in section 7 that "whenever the judge of any division of said circuit court shall be sick, absent, or from any cause is unable to hold any term or part of term of court in such division at Kansas City or Independence, such term or part of term may, by request of such judge of such division, be held by a judge of any other division of said circuit court." The circuit court record, above referred to, showing that Judge Brumback was disqualified on account of sickness, and that he had not called in another judge, it became proper under the general statutes (section 1679, Rev. St. 1899 [Ann. St. 1906, p. 1220]) to elect a member of the bar, as was done here. It was not necessary for the record to show that an effort was made to secure some other judge. State v. Punshon, 133 Mo. 44, 34 S. W. 25. Mr. German entered upon his duties as already stated. So far there could not be, and is not, any question of authority or legal regularity. But, beginning with Brumback's request to Park to hold the court and German's retiring and Judge Park entering upon the duties of judge and trying this case, questions of regularity and authority are presented. The record does not show that the "request" made of Park by Brumback, as authorized by Laws 1901 and Laws 1905, above quoted (which...