Vogt v. Beauchamp

• Decision Date: 20 March 1913
• Parties: VOGT v. BEAUCHAMP et al.
• Court: Kentucky Court of Appeals

154 S.W. 393

153 Ky. 64

VOGT v. BEAUCHAMP et al.

Court of Appeals of Kentucky.

March 20, 1913

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by Andrew P. Vogt against Mark B. Beauchamp and another. From a judgment sustaining a demurrer to plaintiff's petition he appeals. Affirmed.

Edwards Ogden & Peak and Mace Lieber, all of Louisville, for appellant.

W. A Perry and A. Scott Bullitt, both of Louisville, for appellees.

CLAY C.

The principal question involved on this appeal is the validity of the following act of the General Assembly, which may be found in chapter 139, p. 571, Acts 1912: "Whenever the county judge shall be absent or unable from any cause to attend or hold the county court or preside at any trial or prosecution he shall appoint and designate by order entered in the order book of the county court, a county judge pro tem. Said county judge pro tem. shall possess all the qualifications required by law of the regular judge and the regular county judge shall be liable upon his bond for the actions of said appointee: Provided, however, that when either party to any action, motion, application, prosecution or proceeding pending before the county judge, shall file with the clerk of the county court his affidavit that the judge will not afford him a fair and impartial trial, the parties, by agreement, may elect a duly qualified person to preside on the trial or hear the application or hold the court for the occasion; and if any of the parties to said action, proceeding, or prosecution be or are nonresident defendants, who have not entered their appearance, nor have been summoned, or are infant defendants, the attorney appointed to defend for such nonresident or guardian ad litem for such infants, may agree with the other parties to such action, proceeding or prosecution upon a person having all the qualifications of a county judge to try such action, proceeding or prosecution, provided that if no agreement can be reached then a duly qualified person shall be elected by the members of the bar present and not interested in the cause being heard."

The question arises in the following manner: On August 7, 1912, the judge of the county court of Jefferson county, in contemplation of his absence from the county, appointed and designated Mark B. Beauchamp county judge pro tem. to serve during the absence of the regular judge. Beauchamp assumed the duties of the office, and the clerk of the Jefferson county court, P. S. Ray, recognizing Beauchamp as judge, proceeded to enter the orders made by Beauchamp on the county court record.

Prior to the act of March 19, 1912, supra, section 1059, Kentucky Statutes, was as follows: "Whenever the county judge shall be absent, or unable, from any cause, to attend or hold the county court, or preside at any trial or prosecution, or when either party to any action, motion, application, prosecution or proceeding pending before him, shall file with the clerk of the county court his affidavit that the judge will not afford him a fair and impartial trial, it shall be the duty of the county clerk to at once give notice of the fact to the justice of the peace of the county residing nearest to the courthouse, who shall, upon such notice, hold the court, and a justice who holds the court shall be invested, for that purpose with all the powers conferred upon the county judge, and shall, for his services, be paid by the county a reasonable compensation."

When Beauchamp, under his appointment and designation by the regular county judge assumed the duties of that office, Andrew P. Vogt, being the justice of the peace residing nearest the courthouse, and claiming the right to act as county judge under section 1059, Kentucky Statutes, supra, appeared and undertook to assume and perform the duties of county judge. The clerk declining to...