Titan Oil & Gas, Inc. v. Shipley, 74--115

• Decision Date: 02 December 1974
• Docket Number: No. 74--115,74--115
• Court: Arkansas Supreme Court
• Parties: , Blue Sky L. Rep. P 71,181 TITAN OIL & GAS, INC., et al., Appellants, v. Sam SHIPLEY et al., Appellees.

Page 210

517 S.W.2d 210

257 Ark. 278, Blue Sky L. Rep. P 71,181

TITAN OIL & GAS, INC., et al., Appellants, v. Sam SHIPLEY et al., Appellees.

No. 74--115.

Supreme Court of Arkansas.

Dec. 2, 1974.

Supplemental Opinion on Denial of Rehearing Jan. 20, 1975.

Spencer & Spencer, El Dorado, for appellants.

Hale, Hale, Fincher & Hoofman by John M. Fincher, N. Little Rock, for appellees.

FOGLEMAN, Justice.

At the very threshold we are confronted with the most difficult question presented on this appeal, the answer to which determines whether we even consider appellants' other points for reversal. The case was tried before a special chancellor, whose election was timely questioned by appropriate objections made by appellants' attorney. These objections are brought forward here by the assertion that the purported election was invalid and, as a result, the special chancellor had not authority to hear or decide this case. Let it be understood that the Hon. Jack Young, the Special Chancellor, was serving by virtue of his selection at the questioned election--not on exchange or assignment. If his election was not in the manner prescribed by law, he had no judicial power, his acts are coram non judice, and, on direct attack, the decree must be set aside as void and the cause remanded for trial as if it had never been tried. Trotter v. Neal, 50 Ark. 340, 7 S.W. 384; Hyllis v. State, 45 Ark. 478; Gaither v. Wasson, 42 ark. 126; Dansby v. Beard, 39 Ark. 254; Abercrombie v. Green, 235 Ark. 776, 362 S.W.2d 12.

Ark.Stat. § 22--436 (Repl.1962) provides that a special chancellor may be elected for the same causes and in the same manner as special circuit judges. We have held this act to be controlling. Fortuna v. Achor, 254 Ark. 1035, 497 S.W.2d 251. The causes for and manner of selection of circuit judges are set out in Article 7, § 21 of the Arkansas Constitution. The first clause of that section is no longer fully applicable to chancery courts because of the abolition of terms of these courts. Ark. Stat.Ann. § 22--406.1 (Repl.1973). Insofar as pertinent that section reads:

Whenever the office of judge of the circuit court of any county is vacant at the commencement of a term of such court, or the judge of said court shall fail to attend, the regular practicing attorneys in attendance on said court may meen at 10 o'clock a.m. on the second day of the term, and elect a judge to preside at such court, or until the regular judge shall appear; and if the judge of said court shall become sick or die or unable to continue to hold such court after its term shall have commenced, or shall from any cause be disqualified from presiding at the trial of any cause then pending therein, then the regular practicing attorneys in attendance on said court may in like manner, on notice from the judge or clerk of said court, elect a judge to preside at such court or to try said causes, and the attorney so elected shall have the same power and authority in said court as the regular judge would have had if present and presiding; but this authority shall cease at the close of the term at which the election shall be made.

The order entered reflecting the action questioned by appellant reads:

The regular Chancellor being on vacation and not returning until Tuesday, October 23rd, on Tuesday, October 16th Mr. Ben E. Rice was elected Special Chancellor and was unavailable to be here Wednesday, and will be unable to be here this day, it becomes necessary to elect another Special Chancellor to preside for hearings already set by the Chancellor.

Whereupon, the hour of ten A.M. having arrived and the Honorable Darrell Hickman, being absent from the County, and Ben E. Rice, Special Chancellor, being unable to attend, the Clerk posted notices and gave all members of the bar present notice that an election of a Special Chancellor should be held at that time, and said Clerk did thereupon hold said election, at which time all the regular members of the bar voted, and Jack Young, a regular member of the bar of the Court having received the majority of the votes cast at said election, was declared duly elected Special Chancellor.

Whereupon, the Said Jack Young took the oath prescribed by law, and entered upon his duties as Special Chancellor of Pulaski Chancery Court, Third Division, when the following proceedings were had, to-wit:

We have long been committed to the rule that it is not required that the record of the proceedings for the election record of the proccdings for the election of a special judge under this constitutional provision and that the presumption will be indulged that the facts which make the election necessary exist. Lambie v. W. T. Rawleigh Co., 178 Ark. 1019, 14 S.W.2d 245; Fernwood Mining Co. v. Pluna, 136 Ark. 107, 205 S.W. 822.

In determining whether the presumption has been overcome, we must examine the facts shown in support of the attack on Young's election. In doing so, we are not, in this case, restricted by the statement once made that irregularity in the election of a special judge cannot be raised by 'bill of exceptions' but must be raised by amendment to the record, as would appear from Arkadelphia Lumber Co. v. Asman, 72 Ark. 320, 79 S.W. 1060. We have both previously and subsequently held that irregularities in the election of a special judge can be shown when the protest or objection is shown on the record in the trial court and this could be spread upon the record, under former practice, by bill of exceptions. See Caldwell's Adm'r v. Bell & Graham, 6 Ark. 227; Sweeptzer v. Gaines, 19 Ark. 96; White v. Reagan, 25 Ark. 622; Gordon v. Reeves, 166 Ark. 601, 267 S.W. 133; Fernwood Mining Co. v. Pluna, supra. This, of course, is appropriate and proper, and as will be shown appellant here did attempt, albeit unsuccessfully, to contradict the record made. The party unsuccessfully challenging the action taken cannot very well dictate the content of the record or the factual statements therein. Appellant was not challenging the statements made on the record in Arkadelphia Lumber Co. v. Asman, supra, but was attempting to supply by a bystander's bill of exception an omission in the record which did not even show that a special judge presided in the case. In this respect, our decisions are not really in conflict. Insofar as the Arkadelphia Lumber Co. case would bar appellate review of appellant's challenge, we hold it to be inapplicable. In so saying, we are not oblivious to the fact that this case was cited with approval in State v. Howard, 251 Ark. 551, 473 S.W.2d 443. It was fully applicable in Howard and correctly cited. Unlike the present attack, there was no attempt there to show the true facts allegedly not recited in the record in Howard. There was no record before us there, save the record made of the election. No evidence was introduced or offered to contradict the facts stated in the order. In such cases the real defect is that the party seeking review dod not produce a record showing that an attack on the election was made in the trial court, as is required, because we cannot consider the question on appellate review, unless it was raised in the trial court and the grounds of objection shown. See Sweeptzer v. Gaines, 19 Ark. 96; Blagg v. Fry, 105 Ark. 356, 151 S.W. 699. We hold that appellants' challenge to the election is properly subject to our review and do not consider this holding to be inconsistent with our holding in Howard.

We now proceed to outline the facts disclosed by the record. Hon. Darrell Hickman is the duly elected and commissioned judge of the court. There was testimony that, before commencing a vacation Chancellor Hickman advised the clerk of the court he had 'appointed' the Hon. Ben E. Rice and the Hon. Jack Young to try cases during his absence. Judge Hickman presided over the court on Thursday, October 10, 1973 and was scheduled to have held the Chancery Court of Lonoke County on Friday, October 11. He had not appeared in the Pulaski Chancery Court since October 10.

In compliance with Ark.Stat. § 22--406.2 (Repl.1973) the chancellor had prepared a court calendar. This calendar was hung on the wall of the clerk's office and showed the dates the judge of each division would hold court in other counties and all other dates were devoted to Pulaski county. The dates for Judge Hickman's division were marked on calendar hung on were marked on a calendar hung on 18, 1973, were among the dates prescribed for the holding of the court presided over by Judge Hickman in Pulaski County. In August, 1973, this case had been specifically set for trial commencing on October 17 and continuing on the 18th and 19th. Rice had been elected chancellor on October 16, but did not appear on either October 16th or 17th. On October 17, there was a purported election of Young as special chancellor which recited that Hickman was absent from Pulaski county. This election was held void by Young on that date upon objection by appellant.

On October 18, another election was held, and the clerk declared Young elected and he assumed the bench and proceeded to call this case for trial. Rice was in his office in Jacksonville at 9:00 a.m. on that date, and did not appear in the courthouse in Little Rock on that day. On the morning of the day of the election, he advised the clerk by telephone merely that he 'would not be available'. The only notice of election of any kind was an unsigned one posted October 17 by the clerk on each entrance to the courtroom in which the Third Division of the Pulaski Chancery Court was normally held. The notice read:

You are hereby notified that a special chancellor will be elected at 10:00 A.M. October 18, 1973, for Third Division of Pulaski Chancery Court, in the Third Division Chancery Court Room.

Twelve to fifteen attorneys appeared in the courtroom and participated in the election held at 10:00 a.m. at which Young was again elected. There was no written communication to the clerk from either...