The Missouri Pacific Railway Co. v. Preston

• Decision Date: 07 December 1901
• Docket Number: 11,792
• Citation: 63 Kan. 819,66 P. 1050
• Parties: THE MISSOURI PACIFIC RAILWAY CO. v. STELLA M. PRESTON
• Court: Kansas Supreme Court

66 P. 1050

63 Kan. 819

THE MISSOURI PACIFIC RAILWAY CO. v. STELLA M. PRESTON

No. 11,792

Supreme Court of Kansas

December 7, 1901

Decided July, 1901.

Error from Marshall district court; F. W. STURGES, judge pro tem.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. JUDGE PRO TEM.-- Held a De Facto Judicial Officer -- Attack upon Review. The regular judge of the twenty-first judicial district was disqualified to sit in a cause pending before him, and the judge of the twelfth judicial district was called upon to try the same. He appeared, and was duly elected a judge pro tem. by the bar, and presided at the trial, with the acquiescence of the officers of the court and the parties to the action. The constitution provides that district judges shall not hold any other office of profit or trust under the authority of the state. Held, that the. judge pro tem., so called and chosen, was a de facto judicial officer and his authority cannot be questioned in this court in a. proceeding in error brought to reverse the judgment rendered by him in the cause which he was selected to try.

2. JUDGE PRO TEM.-- Error Waived -- Complainant Estopped. The regular district judge, having been of counsel in a cause, was disqualified to sit, and defendant moved for a change of venue for that reason. The motion was overruled, but the court called upon a judge of an adjoining district to try the cause, and he was chosen and acted as judge pro tem., as stated in the preceding paragraph. Such judge pro tem. granted a continuance of the cause, the parties to the action consenting that it might be tried by him at the term to which the same was adjourned, and no objection was made to his acting as such judge. Held, that if any error was committed in overruling the motion for a change of venue it was waived by the party complaining here.

3. JUDGE PRO TEM.-- Oath of Office -- Presumption from Record. A de facto district judge took and subscribed an oath that he would faithfully perform the duties of judge pro tem. in the case which he was selected to try at the regular May term of the court. The cause was continued to the October term, and the record is silent as to whether the judge took another oath of office. Held, that his power to proceed with the case at the October term was not impaired, and that, in the absence of a showing to the contrary, it will be presumed, in favor of the regularity of the proceedings, that the judge was duly qualified to sit and try the cause at the October term.

4. JUDGE PRO TEM.-- Term of Office -- Settlement of Case-made -- Cases Followed. A judge pro tem., upon overruling a motion for a new trial and rendering final judgment, allowed a certain time for the making and service of a case-made for this court, fixed a time within which amendments were to be suggested, and ordered that it be settled upon ten days' notice by either party. Held, that the term of office of such judge expired after the last day fixed for suggesting amendments, and that a case-made settled and signed by him after that time will not be considered. The cases of K. & C. P. Rly. Co. v. Wright, 53 Kan. 272, 36 P. 331, and Manufacturing Co. v. Stoddard, 61 id. 640, 60 P. 320, approved and followed.

5. JUDGE PRO TEM.-- Stay of Execution. A stay of execution granted by a judge pro tem. until a case-made is settled has reference to an effectual settlement made before the judge has lost jurisdiction.

6. FINDINGS -- Consistency. The findings examined, and held, that they do not overturn the general verdict and are not so inconsistent with one another as to justify a new trial.

Waggener, Horton & Orr, W. J. Gregg, and E. A. Berry, for plaintiff in error.

Irish & Brock, and W. W. Redmond, for defendant in error.

SMITH J. JOHNSTON, J., concurring.

OPINION

SMITH, J.:

This case was first decided and affirmed January 5, 1901. (63 P. 444.) A rehearing was granted later, and the questions involved have been fully reargued before the whole court, since it was enlarged by the addition of four justices, elaborate briefs being filed covering the points discussed by counsel.

Judge Sturges, of the twelfth judicial district, was called upon to try this case, after a mistrial before Judge C. W. Smith, of the thirty-fourth district, and he acted as judge pro tem. At the May term, 1899, Judge Sturges was duly selected by the bar as judge pro tem., and took the prescribed oath that he would faithfully perform the duties of such judge at that term. Upon application of the railway company, the trial of the case was continued to the October term, 1899, "both plaintiff and defendant agreeing thereto, and consenting to the trial thereof by said judge," according to the record.

It is contended that when Judge Sturges left his judicial district and was chosen by the bar to act as judge pro tem. and preside at the trial of this case, then pending in the twenty-first judicial district, in Marshall county, and when he accepted the trust, he was disqualified so to do, in that he violated that part of section 13 of article 3 of the constitution, which reads: "Such . . . judges shall receive no fees or perquisites nor hold any other office of profit or trust under the authority of the state," etc. Conceding this claim to be sound, the disqualification complained of was no more complete than it would have been had an alien or a minor been chosen in the same way to sit as judge in the case. We are quite clear that the judicial acts of Judge Sturges performed in this case were those of a judge de facto, and are not subject to attack in a collateral way. After a review of all the authorities, Van Fleet, in his work on Collateral Attack, section 23, says:

"When a person has an appointment to act as judge of a court, which he and the officers of the court adjudge to be valid, and he takes possession of the court and acts, supported by the power of the state, he is a judge de facto."

In the present case, Judge Sturges was recognized by the sheriff, clerk, and attorneys, including the counsel for the parties to this action, who consented to his trial of the cause, and no challenge of his authority or right to sit was made until long after his term of office as judge pro tem. had expired, and then, for the first time, in this court.

Whether jurisdiction may be conferred by consent is not involved; but the question is presented whether the acts of a de facto officer, having color of title to the office, who, while in the performance of his duties, is generally recognized by all persons concerned in the work he is performing, can be questioned in a collateral way, or in any manner except by a proceeding on behalf of the state to which such officer is made a party. In the case of State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409, it was held that no color of right derived from an election or appointment is necessary in order to constitute an officer de facto. In that opinion, rendered by Chief Justice Butler, which has been said by Judge Redfield to be one of the landmarks of the law, it was said:

"An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised:

"1. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry to submit to or invoke his action, supposing him to be the officer he assumed to be.

"2. Under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like.

"3. Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public."

The application of this decision to the case at bar is found in the second and third subdivisions.

The constitution of Vermont provides that no person holding any office of profit or trust under the authority of congress shall be eligible to any appointment under the legislature, or to hold any executive or judicial office under the state. A postmaster was elected justice of the peace, and in a suit before him the defendants pleaded to the jurisdiction, alleging that at the time the summons issued he was a postmaster under the authority of congress and ineligible to hold a judicial office. The court held that a demurrer to this plea was rightfully sustained; that the justice was an officer de facto, and his judicial authority could not be questioned in that way. (McGregor v. Balch et al., 14 Vt. 428, 39 Am. Dec. 231. See, also, Gregg Township v. Jamison, 55 Pa. 468; Ostrander v. People, 29 Hun 513.)

In the late case of The. State v. Williams, 61 Kan. 739, 740, 60 P. 1050, it was said:

"It is a general rule of universal application that a person who receives an appointment to an existing office from those having authority to appoint, and qualifies and enters upon the discharge of the duties of the office, is a de facto officer, although he may be ineligible by reason of being a non-resident, a minor, or an alien. The acts of an officer who comes into possession of an office under the forms of law, and who assumes to act under such an appointment as Chapman had, are deemed to be legal and binding as to the public and all persons who have any interest in the things done by him. The acts of a de facto judge cannot be collaterally attacked and his right to the office is not...