Myers v. East Bench Irr. Co.

STRAUP, J. This action was commenced and tried in Garfield county, in the Sixth judicial district, and was brought to restrain the defendant from amending its articles and increasing its capital stock. Judgment was for plaintiff, and the defendant appeals. Numerous errors are assigned; among them, that the court was not lawfully in session when the case was tried, and that the judgment is therefore void. This assignment must be sustained. Section 672, Revised Statutes 1898, provides: “There shall be held at the county seat of each county at least three terms of the district court in each year.” Section 673: “A district court may adjourn a term of court in one county to a future day certain, and, in the mean time, hold court in another county.” Section 675: “The judges of the district court shall, in December of every year, fix the times of holding terms of court in each of the counties composing their respective districts during the ensuing calendar year. The judge or judges of the several districts shall cause a copy of such order to he transmitted to the secretary of state and also entered upon the journal of the court in each county of the district. County clerks shall cause a copy of such order to be conspicuously posted in their respective offices.” Section 676: “Court shall he held at the time fixed as provided in the previous section, and the time shall not he changed, except 'for sickness of the judge of said district, or, when said judge shall be called into another district at the time appointed for any term, by request of the governor, or when the business in any other county shall necessarily extend the sitting beyond the time appointed for the term. Section 677: “Whenever, for any of the reasons enumerated above, the regular term of court appointed for any county shall be adjourned, the clerk of that county shall so notify the clerk of each county in the district, and it shall be the duty of said clerk, upon receipt of said notification, to post publicly in his office a notice of said change.” Section 703: “If no judge attend on the day appointed for the holding or sitting of a court, or on the day to which it may have been adjourned1, before noon, the clerk shall make an entry thereof in his record, and the sheriff or clerk must adjourn the court until the next [219] day at 10 o’clock a. m.; and if no judge attend on that day before noon, the sheriff or clerk must adjourn the court until the following day at the same hour, and so on from day to day for one week, unless the judge, by written order or telegram, directs it to be adjourned to some day certain, fixed in said order or telegram, in which case it shall be so adjourned.” The Sixth judicial district is composed of Sevier, Wayne, Piute, Garfield, and Kane counties. On December 2, 1904, the judge of that district fixed the time and terms of court in each of the counties of the district for the year 1905, fixing the first term of court in Garfield county on the 19th day of April, 1905. A session of court was held in Garfield county on the 10th day of December, 1904, which was an adjourned session of the November term of that year. On the day last named, that session was adjourned; the judge of said court making and signing the following order: “Nothing further appearing, court adjourned subject to call.” After holding a session of court in Sevier county on the 5th day of January, in Piute county on the 14th day of February, and in Wayne county on the 16th day of March, 1905, the judge of said court attempted to hold a session of court at Garfield county on the 22d day of March, 1905, and adjourned from day to day until the 30th day of March, 1905, when, among the transaction of other business, this ease was set for trial on the 5th day of May, 1905. The court then adjourned, making the following order: “Court adjourned subject to call or order of the couit.” No session of court was held; nor was court opened in Garfield county on the 19th day of April, 1905 ; nor was there any attempt made to do so; nor was that term adjourned; nor any attempt made to adjourn it. It is made to appear that the judge of said district was not sick, nor called into another district, nor had business in any other county which extended the sitting beyond the time appointed for the term. It is also made to appear that the district judge was not at the county seat of Garfield county on the 19th day of April, and not until the 1st day of May, 1905, when a session of court was attempted to be held; nor was the April term in any manner adjourned, or extended, or kept intact [220] This case was tried on the 5th and 6th days of May and was submitted to the court, who, on the 21st day of June, made and filed findings and entered judgment. From the foregoing it appears that this case was not- tried at, a. time when the court was legally in session. For. want of a session being held on April 19th, or of an adjournment as by laAv provided, that term failed and ended. Nor can the setting of the trial of this case be held to have been made or conducted at a time to which the November term was adjourned. That term ended on- the 10th day of December, 1904, at which time the court adjourned, not from day to day, or to a future day certain, as under the law it might do, but adjourned “subject to call,” which was an adjournment without day, and ended the term. Thereafter the court could not legally convene, nor could a session of court be held in Garfield county, till the next regular term time, which was fixed for April 19th. The sessions attempted to be held in March were illegal, and the proceedings attempted to be transacted by the court in pursuance thereof were without authority. • An adjournment, without fixing any special time ends the term, and the law determines the time at which the court shall convene to be at the beginning of the next-term; but an adjournmnt of the term to a day certain leaves it intact. The failure of the judge of the district to attend and open court upon the appointed day, the 19th day of April, or of adjourning the term as by law provided, operated to end that term, and no further session of the court could be held until the next regular term. -Terms of the district court can only be held at the times fixed, as by law provided, and if not held in accordance with the statute the proceedings will be void. A meeting together of the judge and the officers of the court at the place, but not at the time fixed as provided by law for holding court, is not a court, and their acts as such must be regarded as coram non judice. The views herein expressed are amply supported by the following authorities: Irwin v. Irwin, 2 Okl. 180, 37 Pac. 548; In re Terrill, 52 Kan. 29, 34 Pac. 457, 39 Am. St. Rep. 327; McCool v. State, 7 Ind. 378; Cain et al. v. Goda, 84 Ind. [221] 209 ; Brumley v. State, 20 Ark. 77; Insurance Co. v. Pappe, 4 Okl. 110, 43 Pac. 1085; Goodall v. People, 123 Ill. 389, 15 N. E. 171; White v. Riggs, 27 Me. 114; 1 Pl. & Pr. 243 ; Stovall v. Emerson, 20 Mo. App. 322. The contention, made by respondent, that the appearance of the defendant and its counsel. a.t the setting of the case, and of their proceeding to trial without objection, precluded the appellant from raising the question that the court was not legally in session and was without authority to try the case, is not tenable, and is fully answered in the cases of Insurance Co. v. Pappe, supra, and White v. Riggs, supra, where it is held that if terms of court are fixed at stated periods, and the court fails, to convene at the time so fixed, and by reason thereof the court is not legally in session, the parties to the action cannot, by agreement, confer jurisdiction upon the court to render a judgment binding upon the parties. The judgment of the court below is therefore vacated and set aside, and a new trial granted; costs to appellant. McCARTY, C. J., and ERICE:, J., concur.