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In Cantrell v. City of Caruthersville, 363 Mo. 988, 255 S.W.2d 785, the authority of a circuit judge to call in another judge was questioned on the ground § 478.060 required the reasons for the calling in of another judge to be entered of record and had not been complied with.
Summary of this case from Pogue v. SwinkOpinion
No. 43366.
February 9, 1953. Motion for Rehearing or to Transfer to Banc Overruled, March 9, 1953.
The facts and holding of the opinion are adequately summarized in the headnote.
JUDGES: Courts: Constitutional Law: Judgments: Disqualification of Regular Judge: Jurisdiction of Circuit Judge Requested to Serve: Constitutional Provision Self-Enforcing: Judgment Valid. When the regular circuit judge disqualified himself he had the right under Sec. 15, Art. V of the 1945 Constitution to request another circuit judge to sit in the case. Said constitutional provision is self-enforcing, and statutory provisions enacted under the authority of the 1875 Constitution have no application. The judge so requested to sit had jurisdiction to try the case, and the motion to set aside the judgment was properly overruled.
Appeal from Pemiscot Circuit Court; Hon. Joseph Hunter Allen, Judge.
AFFIRMED.
Von Mayes and Fred L. Henley for appellants.
(1) A circuit judge is a constitutional officer and is powerless to sit outside of his own circuit until authorized by the constitution directly or indirectly. Section 15 of Article V of the Missouri Constitution, 1945, does this by allowing a circuit judge the right to sit in another circuit when so requested by the judge of such circuit, but prescribes no reason, circumstances, limitation or procedure therefor. Evidently said provision was not intended to be a living-law until made so by supplemental statutes or court rules. Rule 11.03 merely recognizes the effect of Section 478.033, infra. The right of a judge to sit in another circuit is an old one in certain respects and said provision supplies no rule for the enjoyment, protection or enforcement of such right. No statute has been affected by said constitutional provision. Only the rules of this court have been changed since the adoption of new constitution, the previous statutes as to change of judges and venue remaining the same. 16 C.J.S., sec. 48, p. 98; 12 C.J., secs. 140, 141, p. 739; Patterson v. State, 221 S.W. 596; State v. Smith, 355 Mo. 27, 194 S.W.2d 302; State v. Walden, 206 S.W.2d l.c. 984; McGrew Coal Co. v. Mellon, 315 Mo. 798, 287 S.W. 450; Sec. 478.033, RSMo 1949; Mo. Const., Sec. 29, Art. VI, 1939; 58 C.J., p. 740; Secs. 5 and 6, Art. V, Mo. Const., 1945. Supreme Court Rule 11. (2) The record entry made in this case states no disability or reason for disqualification as required by Section 478.060, RSMo 1949, and in the absence of the file papers or a record entry showing such disability or reason for disqualification a regular judge is without jurisdiction to name a special judge in a civil case or call in the judge of another circuit to hold a full or part term of his court. This rule, however, does not obtain in a criminal case. Secs. 508.100, 478.037, 478.060, RSMo 1949; Autenrieth v. Ry., 271 Mo. 248, 196 S.W. 1129; Collier v. Lead Co., 208 Mo. 246, 106 S.W. 971; State v. Price, 228 Mo. App. 530, 70 S.W.2d 130; Brinkerhoff-Faris, etc., v. Gaskill, 201 S.W.2d 274; See Proposed Rules, p. 6. (3) Nor is a regular judge empowered by statute or rule of court to request the judge of another circuit to sit in a particular civil case. He must make such request to this court. Rule 11. Gale v. Michie, 47 Mo. 326; State v. Higbee, 328 Mo. 1066, 43 S.W.2d 825; State v. Waltner, 350 Mo. 1021, 169 S.W.2d 697. (4) The power to call or name a special or substitute judge, when not authorized by law, cannot be waived or granted by consent or agreement. Judge Oliver was neither a de jure nor a de facto judge. Judge Schult was entirely without jurisdiction to call or name any judge to try the case, special or otherwise. 33 C.J., sec. 203, p. 1024; Edmonds v. Scharff, 279 Mo. 78, 213 S.W. 828; Texas Pacific Coal Co. v. Ready, 198 S.W. 1034. (5) The affirmance of the judgment by this court on the appeal from such judgment is not res judicata, the validity of the judgment having not been decided by this court. State v. Smith, 134 S.W.2d 1061; First Natl. Bank v. Overshiner, 198 S.W. 979.
Ward Reeves for respondent.
(1) In Missouri a special judge, especially one who is a regular Judge in another circuit as distinguished from a lawyer who is elected to try a particular case under the authority of our old Constitution and statutes enacted thereunder, is a Judge de facto. In re Liquidation of Brinkerhoff-Faris Trust Savings Co., 356 Mo. 61, 201 S.W.2d 274; State ex rel. McGaughey v. Grayston, 349 Mo. 700, 163 S.W.2d 335; Hill v. Kresge Co., 202 Mo. App. 385. (2) When a Judge disqualifies himself for any reason or for no reason, or for a wrong reason, and wrongfully calls in another Judge to try a civil case, such matters do not present a question of jurisdiction but of error, which must be preserved in the trial court for review in the appellate court. Timely objection to the proceedings and of the authority of the Special Judge must be made. In re Liquidation of Brinkerhoff-Faris Trust Savings Co., 356 Mo. 61, 201 S.W.2d 274; State ex rel. McGaughey v. Grayston, 349 Mo. 700, 163 S.W.2d 335; State ex rel. Dunlap v. Higbee, 328 Mo. 1066, 43 S.W.2d 825; In re Drainage Dist. v. Richardson, 227 Mo. 252; Collier v. Lead Co., 208 Mo. 246; Hill v. Kresge Co., 202 Mo. App. 385. (3) The record does not show the reason for Judge Schult's disqualification. In the absence of any showing to the contrary it will be presumed that Judge Schult had a legal reason for disqualification. It was not essential or jurisdictional that the reason be stated on the record. Hill v. Kresge Co., 202 Mo. App. 385; State v. Huett, 340 Mo. 934, 104 S.W.2d 252. (4) After acquiescing in the trial of the cause by Judge Oliver and of such conduct as amounts to an agreement of the parties to try the cause before Judge Oliver, appellants are now estopped and precluded, particularly after affirmance of the judgment by the Supreme Court, from attacking the validity of the judgment. In re Liquidation of Brinkerhoff-Faris Trust Savings Co., 356 Mo. 61, 201 S.W.2d 274; Hill v. Kresge Co., 202 Mo. App. 385. (5) Section 15, Article V of the Constitution is self-enforcing and applies alike to civil and criminal cases, and the only essential requirement is that the regular Judge request another Judge to sit, whether it be to hold a term or part of a term or to try a single case. State v. Emrich, 361 Mo. 922, 237 S.W.2d 169; State v. Scott, 359 Mo. 631, 223 S.W.2d 453; State v. Massey, 358 Mo. 1108, 219 S.W.2d 326; State v. Walden, 357 Mo. 167, 206 S.W.2d 979.
Appeal from order overruling motion to set aside judgment (and quash writ of restitution thereon) in the case of Cantrell v. City of Caruthersville, Mo. Sup., 249 S.W.2d 425. Appellants contend the judgment is void because they say that Honorable R.B. Oliver III, Judge of the 28th Judicial Circuit, was without jurisdiction to try said cause.
The record entry made by the regular Judge of the Circuit Court of Pemiscot County, 38th Judicial Circuit, was as follows:
"Hon. Louis H. Schult, the Judge of this Court, being disqualified to hear and determine the issues involved in this cause, it is therefore requested that Hon. R.B. Oliver, III Judge of the 28th Judicial Circuit, try the case, and the same is set for hearing before Judge R.B. Oliver III on Tuesday, February 22, 1951."
Appellants say: "The above entry states no disability or reason for disqualification as required by Section 478.060, R.S. 1949, and in the absence of the file papers or a record entry, showing such disability or reason for disqualification, a regular judge is without jurisdiction to name a special judge in a civil case or call in the judge of another circuit to hold a full or part term of his court." Appellants also question whether Sec. 15, Art. V, 1945 Constitution, is self-enforcing and seek to place such limitations upon it as were made by such cases as State ex rel. Dunlap v. Higbee, 328 Mo. 1066, 43 S.W.2d 825 (see also State ex rel. Kansas City Public Service Co. v. Waltner, 350 Mo. 1021, 169 S.W.2d 697) under provisions of the Constitution of 1875.
Appellants are wrong. Sec. 15, Art. V, means exactly what it says, namely: "Any circuit judge may sit in any other circuit at the request of a judge thereof." The carefully considered purpose of this provision was to completely do away with the technical limitations stated in the cases cited under the 1875 Constitution. We hold this provision is self-enforcing and that Sec. 478.060 (adopted under the provisions of the 1875 Constitution) has nothing whatever to do with it. It makes no difference whether the request is to sit in one case or several cases or a whole term or a part of a term; or whether the regular judge of the circuit continues to hold court in the county. (See Supreme Court Rule 11.04.) Circuit judges are judges of the State of Missouri and not merely judges of the circuit in which they are elected or appointed. Of course, if a judge does not feel that he should select the judge to try a particular case, he may call upon the Supreme Court to transfer a judge under the authority of Sec. 6, Art. V of the Constitution; but that is a matter of judicial discretion and not of jurisdiction. Appellants never objected at any time to Judge Oliver trying the case. (See In re Liquidation of Brinkerhoff-Faris Trust and Savings Company (Winchell v. Gaskill) 356 Mo. 61, 201 S.W.2d 274 and cases cited.) We hold that the request of Judge [787] Schult herein as shown by the above record entry, was sufficient and that Judge Oliver had full authority and jurisdiction to try the case and render the judgment he did.
The judgment is affirmed. All concur.