Opinion
6 Div. 186.
June 19, 1924.
Appeal from the Circuit Court; Hon. S. F. Hobbs, Judge.
Horace C. Wilkinson, of Birmingham, for petitioner.
There is no authority of law for appointment of special judges, where the regular judge is merely temporarily unable to discharge his duties. Const. 1901, § 160; Ex parte Amos, 51 Ala. 57. The appointment of Wilder was absolutely void and he was not a de facto judge. Oates v. State, 56 Tex. Cr. R. 571, 121 S.W. 370; Ex parte Fish (Mo.App.) 184 S.W. 479; Stanclift v. Swingle, 30 Okl. 544, 120 P. 252; Van Slyke v. Insurance Co., 39 Wis. 390, 20 Am. Rep. 50; Bedingfield v. Bank, 4 Ga. App. 197, 61 S.E. 30; King Lbr. Co. v. Crowe, 155 Ala. 504, 46 So. 646, 130 Am. St. Rep. 65.
Cabaniss, Johnston, Cocke Cabaniss, Gibson Davis, and Brewer Dixon, all of Birmingham, for respondent.
Even if the act of 1919 be void, Hon. C. E. Wilder was a de facto judge. 33 C. J. 971; Roberts v. State, 126 Ala. 74, 28 So. 741, 30 So. 554; Walker v. State, 142 Ala. 7, 39 So. 242; Joseph v. Cawthorn, 74 Ala. 411; Masterson v. Matthews, 60 Ala. 260; 15 R. C. L. 517; Ex parte State Bar Ass'n, 92 Ala. 113, 8 So. 768; Ex parte State, 142 Ala. 87, 38 So. 835, 110 Am. St. Rep. 20.
It may be conceded that, if the order of Special Judge Wilder continuing the motion for a new trial was void, the same is not now in fieri, and a judgment granting said motion would be void, and would not support an appeal, and that the plaintiff therefore has the right to test the validity of Judge Wilder's order by the present process. We think, however, that, whether the act of 1919, page 841, under which Wilder was appointed be valid or not; he was a de facto judge, and the order made by him continuing the case was not void. Walker v. State, 142 Ala. 7, 39 So. 242. It is suggested that the rule declared in the Walker Case, supra, does not apply here, for the reason that the Constitution contemplates no such judge as the one provided by the act; that section 160 provides for the method of appointing a judge in case of the incompetency of the regular judge to try any particular case, and does not authorize a special judge because of the inability of the regular judge to hold court. We may concede that section 160 does not cover the present appointment, but section 161 gives authority for a special judge in case the regular judge is unable to hold a regular term. B. R., L. P. Co. v. Fox, 174 Ala. 657, 56 So. 1013.
The writ is denied.
ANDERSON, C. J., and SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.