Ward v. Bell
| Citation | 137 S.W. 1026,157 Mo.App. 524 |
| Parties | CHARLES WARD et al., Respondents, v. CLAYTON BELL and W. D. EGOLF, Partners doing business as BELL, EGOLF & COMPANY, Appellants |
| Decision Date | 29 May 1911 |
| Court | Court of Appeals of Kansas |
Appeal from Jackson Circuit Court.--Hon. H. C. Timmonds, Special Judge.
Judgment affirmed.
Marley & Grover for appellant.
(1) The election of the Hon. H. C. Timmonds as judge on Thursday April 1, 1909, the same being the sixty-seventh day of the January, 1909, term of the circuit court of Jackson county Missouri, was only for the balance of that term, and when the April, 1909, term of the same court opened on the 12th day of April, 1909, with the Hon. Thos. J. Seehorn presiding, the Hon. H. C. Timmonds was without authority to preside any further as a judge. Berry Bros. v. Leslie, 131 Mo.App. 238, and authorities cited; State ex rel. v Perkins, 139 Mo. 117. (2) The Hon. H. C. Timmonds being without authority to act, the judgment rendered by him in this case is absolutely null and void. State ex rel. v. Perkins, 139 Mo. 117.
Ewing C. Bland for respondents.
(1) The record as corrected by the nunc pro tunc entry as shown in the foregoing supplemental and additional abstract of the record, of the election of Honorable H. C. Timmonds as special judge, now shows that he was elected to try this case only, and therefore, he had jurisdiction to make all orders in this case, regardless as to when the regular judge returned to the bench. State ex rel. v. Williams, 136 Mo.App. 336; Berry Brothers v. Leslie, 131 Mo.App. 238; Voullaire v. Voullaire, 45 Mo. 602; State v. Moberly, 121 Mo. 604.
This is an action for fraud tried in the circuit court of Jackson county before the Hon. H. C. Timmonds as special judge and is before us on an appeal prosecuted by defendants from a judgment recovered by plaintiffs.
The contention of counsel for defendants is that the special judge was without jurisdiction to render the judgment and the main point in controversy is whether the special judge who was elected by members of the bar under the provisions of sections 3961 and 3977, Revised Statutes 1909, was elected specially to try this cause or to hold court for the remainder of the January, 1909, term.
The record of the election made by the clerk recites that on April 1, 1909, being the sixty-seventh day of the January, 1909, term of the court, the following proceedings were had and held by said court: "This day court met pursuant to adjournment; the Honorable Thomas J. Seehorn, Judge regularly presiding over this division, being unable to hold court, and not having procured another judge to hold court, the clerk of this court proceeds to hold an election among the members of the bar present, more than five in number, at said election the Honorable H. C. Timmonds, having the qualifications of the Circuit Judge was elected to hold court as special judge in accordance with the Statutes of the State of Missouri, in such cases made and provided; and after taking and filing his oath of office as special judge he entered upon the discharge of his duties as said special judge."
These recitals indicate that the special judge was elected to hold the remainder of the January term for Judge Seehorn but from other record entries, it appears that the case before us was set specially for that day, and was the only case over which Judge Timmonds assumed authority to preside.
The Judge's minutes relating to this case stated that it was "Specially set for April 1, 1909," and under the head of "Minutes" contained the recital: "4-1-09. H. C. Timmonds elected Special Judge and qualified; jury waived; cause con'd until Wednesday Apr. 14, '09 at 9:30 a. m. for final hearing thereon. "
Judge Timmonds retained jurisdiction of the case, tried it at a later term of court and at the January, 1909, term rendered the judgment from which the present appeal was taken. At the January, 1911, term, plaintiffs filed an application for a nunc pro tunc order to correct the record of the election of Judge Timmonds in order that it should show the true fact that he was elected specially for this cause and not to hold the remainder of a term of court. Judge Timmonds presided at the hearing of this motion and over the objection of defendant sustained it and ordered that the record of the election which he found from other record entries to be erroneous be corrected to read as follows:
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