Crane v. Brooke

Opinion of the court by JUDGE BURNAM Reversing. This is an appeal from the Kenton Circuit Court. In the motion and grounds for a new trial filed in the court below numerous errors were complained of. The third, fourth, and sixth grounds relied on were, viz.: “(3) Because of error committed, in that J. L. Elliston, who presided as special judge, had no power or authority to try this case, nor to hold court, nor to preside in the trial thereof. (4) Because of error committed, in that J. L. Elliston; who 'assumed to and acted as special judge in the trial of this case, was never elected a special judge for the trial of this case, but the election under which he assumed to and did [650] act was held in another and different case, namely, No. 8,649 of this court, having the same-title--of ‘C. Crane & Co. v. W. M. Brooke,' etc.” “(6) Because of error committed, in that said J. L. Elliston, who assumed to and did' -hold court and1 preside in the trial of this- case, assumed to do so under an election held on May 28, 1898, in. said case No. 8,649 of this- court, -and the time for which he was elected, if elected, had expired long before the trial of this case, No. 8,565, on the docket of the Kenton Circuit Court.” - It appears from the record that this case was called for trial on May 28, 1898, and the regular judge of the Kenton Circuit Court, having previously to- his election as judge, been employed as attorney in the case, declined to preside; and, the parties failing to agree upon a special judge, the members of the bar present proceeded to elect a judge to try the case. Two ballots- were taken, but no election had, and the clerk of the- court, through his deputy, continued the election until a specified hour on the 28th of May following. On the day and hour specified the clerk held an election for such special judge to preside in the trial of the case, and J. L. Elliston, Esq., a member of the Kenton county bar, was- elected. Thereupon Elliston appeared, and took the oath prescribed by law for a -special judge. The case was not tried at that term of the court, but was continued and set for trial -on the 11th of October. On that day the case was remanded, and in the following March it was set for trial on the 3d of April, 1899. At the sitting of the court on April 3, 1899, the plaintiff filed the following objection: “Plaintiff says that J. L. Elliston has n-o legal power or authority to hold court, nor to act as special judge in this case, the term at which he was elected a. special judge having long since expired; and it objects to his holding the court and presiding in the trial [651] of said case.” This objection was overruled, to which plaintiff objected and excepted. The Kenton Circuit Court is a court of continuous session, but not a court of continuous term. For all purposes for which terms are fixed, the period of sixty days constitutes a term. Section 988 of the Kentucky Statutes gives such courts “control over its judgment for sixty days, as circuit courts have over their judgments during the terms in which they are rendered.” And section 968 of .the Kentucky Statutes is as follows: “When, for any cause, .the judge of the circuit court fails to attend, or being in attendance, can not properly preside in an action, proceeding or prosecution pending in said court, or if either party shall file with the clerk of the court his affidavit that the judge will not afford1 him a fair and impartial trial, or will not impartially decide an application for a change of venue, the parties, by agreement, may elect one of the attorneys of the court to preside on the trial, or hear the application, or hold court for the occasion; and on their failure to agree upon an attorney, the attorneys of the court who are present and not interested, not employed in the cause, shall elect an attorney of the court, then in attendance, having qualifications of a circuit judge, to hold the court for the occasion, who shall preside accordingly; and the judge so elected shall preside in all cases called during the term in the absence of the regular judge, or in which he can not preside, except in those cases in which the special judge can not properly preside.” In construing this provision of the statute in Childers v. Little, 96 Ky., 376, (29 S. W., 319), it was held that “special judge elected to try such cases as the regular judge could not properly try at a particular term, had no power to render judgment in a case at the next term.” ' [652] And in Small v. Reeves (Ky.), 46 S. W., 726, the court reaffirmed the conclusions reached in the Childers v. Little Case, and said: “The special judge had no authority to act as judge in the case after the expiration of the term at which he was elected. The statutory provision that the judge so elected shall preside in all cases called during the term applies not only to other cases in which the regular judge can not preside, but to the case in which the special judge was elected, and indicates an intention to fix a definite term beyond which judicial power can not be exercised by a special judge.” It is evident from the decisions in these cases that no special judge could serve in a court of continuous session for more than sixty days from and after the time of his election, unless he should be re-elected, or the parties to the case should try it before him, after the expiration of the sixty days, without objection. It follows that Special Judge Elliston had no authority, then, to try the case, and erred in failing to vacate the bench when objection was made to his presiding in the trial. Numerous other errors are complained of, but, as they are not likely to again occur in the trial of this case, it will be unnecessary for us to consider them. But for the reason indicated the judgment is reversed, and the case remanded for a new trial, and for proceedings consistent with this opinion.