Nelson v. Seattle Traction Co.

The opinion of the court was delivered by Hadley, J. This cause was tried below to a jury, and before the Hon. Orange Jacobs, then a judge of the superior court of King county. The jury returned a verdict for defendant on the 10th day of November, 1900. On the 12th day of November, 1900, plaintiffs filed a motion for a new trial. The following day the motion was argued, [603] and submitted to tbe said Judge Jacobs. After argument and submission, the motion was taken under advisement by tbe court, and, by reason of tbe pressure of other duties, was not passed upon before tbe expiration of Judge Jacobs’ term of office, which occurred on tbe 14th day of January, 1901. Thereafter, on tbe 17th day of January, 1901, a stipulation in writing in said cause was entered into between counsel for plaintiffs and defendant as follows : “It is hereby agreed that Orange Jacobs, a member of tbe bar of tbe state of Washington, shall try and determine tbe above entitled cause, and especially tbe motion for new trial therein, and render judgment upon tbe verdict in said cause as a judge of tbe said court pro tempore." Upon tbe filing of said stipulation, tbe Hon. Arthur E. Griffin, a judge of tbe said court, entered tbe following order: “I hereby make and approve tbe appointment of Orange Jacobs as judge pro tempore in tbe above entitled cause.” On tbe same day Orange Jacobs executed and filed tbe proper oath of qualification as judge pro tempore in said cause, and thereafter denied plaintiffs’ motion -for a new trial, and entered judgment in favor of defendant to tbe effect that plaintiffs should take nothing by their said action and that respondent should go hence without day, and should recover its costs. Erom said judgment tbe plaintiff Charles Uelson has appealed. Tbe first assignment of error is that tbe court erred in appointing a judge pro tempore. We do not think so. Tbe statute, as found in § 4676, Bal. Code, clearly authorizes such an appointment to be made when tbe parties to a cause have agreed thereto in writing. Tbe statute reads: “A case . . . may be tried by a judge pro tempore . . . We construe tbe statute to mean that a judge [604] pro tempore acquires jurisdiction of a cause from the time of his appointment and qualification, and he thereafter tries what remains to be done in the case, whether it be the trial of questions of fact or of law, or both. In this case the trial upon the facts had been heard, and there remained certain questions of law to be determined, viz., those raised by the motion for a new trial and the entry of judgment. The next assignment of error is stated as follows: “The order approving the appointment of Orange Jacobs as judge pro tempore as judge in said cause is void for the reason that said judge pro tempore under said stipulation and under the law had no power to settle a bill of exceptions and statement of facts containing' the exceptions reserved on the trial of the cause as required by law, the term of office of the judge of the courj; who presided at the trial of this cause having expired without the motion for new trial having been acted upon by him.” "We think, as heretofore stated, that the order was properly entered, and that the judge pro .tempore had the power to settle the statement of facts. He was, in effect, for all purposes of the case, the successor in office of the judge who tried the case. In the case of Rauh v. Scholl, 19 Wash. 30 (52 Pac. 332), the motion for new trial was decided, and judgment was entered by a judge who succeeded the one who tried the cause upon the facts. The court affirmed the judgment in that case, and held that the succeeding judge was empowered both to decide the motion for new trial and enter judgment. In that case a motion was made to strike the statement of facts on the ground that it was settled by the judge after his term of office had expired. The court held that the motion would have been well taken, under the authority,of Hallam v. Tillinghast, 19 Wash. 20 (52 Pac. 329), but for the fact that the appellants in the case also procured the certificate of the [605] succeeding judge. Under the authority of the last named case, it is the certificate of one vested with judicial power that gives vitality to a statement of facts. In that case, at page 23 of the opinion, the court says: “Uo hardship can result, for the statement can be settled by the court. The identity of the judge is lost in the court, and the court continues, although the term of a judge .is ended. Where a controversy arises the ex-judge can be subpoenaed and compelled to testify.” In Gunderson v. Cochrane, 3 Wash. 416, 480 (28 Pac. 1105), it is said: “In a proceeding to settle a statement before a succeeding judge, to assist in ascertaining the facts, the judge who tried the cause can be subpoenaed and required to testify. If a case should arise where the office was vacant, or where the statement could not be settled for any cause over which the parties had no control and could not avoid, we might grant a new trial or take some suitable action in the premises, but it is sufficient now to say that we have not such a case before us.” Uo such conditions exist in this case as are suggested in "the quotation last above set forth. Orange Jacobs was judge pro tempore in the cause, and as such was as fully empowered to continue proceedings in the case to its close in the superior court as though he had been a duly elected and qualified judge of said court at the time. There was no necessity for calling in the judge who tried the cause to testify as to what occurred at the trial, in order to enable the presiding judge to determine controversies concerning the statement of facts, for the reason that Orange Jacobs, the judge pro tempore, was the same individual as Judge Orange Jacobs, who formerly presided. By no kind of metaphysical reasoning can it be maintained that the knowledge possessed by Judge Jacobs when he was a superior judge was not retained by him when he became judge pro tempore three days later. [606] Tlie next assignment of error is that the judge pro tempore erred in overruling appellant’s motion for a new trial. There is no statement of facts in the record, and we cannot intelligently consider the motion for new trial •on its merits. The judgment is affirmed. Reavis, C. J., and Pullekton, Andeks, White and Mount, JJ., concur.