Sapp v. McConnon & Co.

The writ of error brings for review a judgment in a common law action which judgment was entered *Page 880 in the Circuit Court in and for Jackson County, the 14th Judicial Circuit of Florida, by the Hon. A.G. Campbell, Judge of the First Judicial Circuit of Florida on the 1st day of October, 1935, in favor of the defendant in error against the plaintiff in error. The record shows that the judgment was entered by Judge Campbell after Judge E.C. Welch, one of the Judges of the Fourteenth Judicial Circuit, had filed a certificate of his disqualification and after proof that the Hon. D.J. Jones, the other Judge of the Fourteenth Judicial Circuit, was absent from the Circuit on account of illness. The sole question presented for our determination is whether or not Section 10 of Chapter 16053, Laws of 1933, supersedes the provisions of Section 2681 R.G.S., 4348 C.G.L., Act, Chapter 16053, supra, is entitled: "AN ACT to Define When a Judge is Disqualified; to Establish the Manner and Mode of Determining such Disqualification; To Define the Effect of Acts by Judges who Are, Were or May Be Disqualified; and for the Repeal of Section 2525 of the Revised General Statutes of 1920, shown as Section 4152 of The Compiled General Laws of 1927, and Section 2528 of the Revised General Statutes of 1920, Shown as Section 4155 of the Compiled General Laws of 1927, Said Sections Relating to the Disqualification of Judges." Section 10 of the Act provides as follows: "Section 10. DESIGNATION OF JUDGE TO HEAR CAUSE WHEN ORDER OF DISQUALIFICATION ENTERED: Every Judge of this State shall upon the entry of an Order of Disqualification mail a copy of said order to the Governor. Upon receipt of copy of such order the Governor shall thereupon designate another Judge to hear said cause. The original of such designation by the Governor shall be mailed *Page 881 therewith to the Clerk of the Court in which said cause is pending and shall be by said Clerk filed in the cause. In designating another Judge the Governor shall have consideration for the convenience of parties and their counsel. Provided, however, that in the event any judge shall be disqualified as herein provided, upon application for any temporary writ of injunction or habeas corpus, he shall immediately enter an order of disqualification, whereupon said cause may be presented to any other Judge of a Court of the same jurisdiction as the Court in which said cause is pending, and it shall be the duty of any such Judge to hear and determine such matters until such substitute judge is so designated." The constitutionality of the section of the Act is not challenged. The provisions thereof are repugnant to and in conflict with Section 2681 R.G.S., 4348 C.G.L., and Section 12 of Chapter 16053, supra, specifically repeals all the laws in conflict therewith. It, therefore, must be held that the provisions of Section 10 of the 1933 Act, supra, repealed the provisions of Section 2681 R.G.S., 4348 C.G.L. It is conceded that the provisions of Chapter 16053 were not complied with in that upon the disqualification of Judge Welch no designation had been made by the Governor authorizing a Judge of another Circuit to proceed to make orders in the cause. Therefore, the judgment rendered by Judge Campbell was one which he did not at the time have jurisdiction to enter and must, therefore, be reversed. It is so ordered. Reversed. ELLIS, P.J., and TERRELL, J., concur. WHITFIELD, C.J., and BROWN and DAVIS, J.J., concur in the opinion and judgment. *Page 882 (SUPPLEMENT TO OPINION FILED JULY 23, 1936.)