State v. Sachs

• Decision Date: 09 February 1892
• Citation: 29 P. 446,3 Wash. 691
• Parties: STATE EX REL. COUGILL v. SACHS, JUDGE.
• Court: Washington Supreme Court

29 P. 446

3 Wash. 691

STATE EX REL. COUGILL v. SACHS, JUDGE.

Supreme Court of Washington

February 9, 1892

Certiorari by the state ex rel. Mary Cougill against Morris B. Sachs, as judge of the superior court of Jefferson county, to review the action taken in the superior court of Jefferson county in an action by Mary Cougill against the Farmers' & Merchants' Insurance Company Incorporated. The order of the superior court setting aside a judgment for plaintiff is vacated.

John Trumbull, for relator.

SCOTT J.

This is a proceeding by certiorari to review the action taken in the superior court of Jefferson county in a cause wherein the relator was plaintiff and the Farmers' &amp Merchants' Insurance Company, Incorporated, was defendant. It appears by the record herein that said action was commenced in the district court of Jefferson county Wash. T., on the 9th day of July, 1889; that on the 13th day of August, 1889, Morris B. Sachs appeared as attorney for the defendant, and filed a demurrer and motion for a bill of particulars; that afterwards, at the election held on the first Tuesday of October, 1889, the said Morris B. Sachs was elected judge of the superior courts for the counties of Jefferson and others, and that afterwards he duly qualified and entered upon the discharge of his duties as such judge; that W. F. Hays succeeded said judge as attorney for said defendant, and thereafter, at the first term of court after his election, said judge declined to preside at the trial of said cause, in consequence of his previous connection therewith as an attorney; that afterwards, on the 15th day of September, 1890, the attorneys for said parties agreed to try the case before a judge pro tempore, and agreed upon one E. C. Johnson, a member of the bar of this state, residing in Port Townsend, which agreement was at said time approved by SACHS, J., and said approval entered upon the journal of said court; that said judge pro tempore duly subscribed and took the oath as by statute provided, and on the 11th day of December, 1890, the said cause was tried before him without a jury. Both parties were present in court, and no objection was made by either of them to the judge pro tempore. Judgment was rendered in favor of the plaintiff. Immediately thereafter a motion was made by the defendant for a new trial, which was on the 16th day of May, 1891, argued before the judge pro tempore by the attorneys for said parties, and denied. That on the 23d day of June, 1891, the defendant filed a motion to vacate the judgment rendered in said cause, on the ground that the judge pro tempore was not qualified to act because the parties had not signed an agreement for his appointment, which motion was based upon the records and files in the cause. Said motion came on to be heard on the 27th day of June, 1891, and, without any previous intimation, was brought up before SACHS, J. The plaintiff objected to such proceedings on the grounds that said judge was disqualified, that he had not jurisdiction, and that said cause was then pending before the judge pro tempore. But, notwithstanding such objections, said judge proceeded to hear the argument on the motion, and made an order thereon, which, reciting that "it appearing to the court that the said judge pro tempore was not appointed by agreement in writing, signed by the parties or their attorneys, and approved by the court," purported to vacate and set aside the judgment. No proof or showing was made upon the hearing of the motion of any matters other than those appearing of record in said cause. But said ground was sustained because the record does not affirmatively show that the parties entered into a written stipulation for the appointment of said judge pro tempore. The statute (section 11, Sess. Laws 1889-90, p. 343) provides that "a case in the superior court of any county may be tried by a judge pro tempore, who must be a member of the bar, agreed upon in writing by the parties litigant, or their attorneys of record, approved by the court, and sworn to try the case." The matters with reference to the appointment of the judge pro tempore in this case are recited in various journal entries made therein, but it is not stated in any of them, nor does the record here show in any way that the agreement aforesaid was submitted in writing; and the defendant contends that, as it does not appear that a written...