Apple v. Ellis , 50 Okla. 80 ( 1915 )

Section 5813, Rev. Laws 1910, provides that in any civil case in any court of record of this state, if the presiding judge for any legal cause shall be incompetent or disqualified to try, hear, or render judgment in such cause, the parties or their atorneys of record may agree upon some member of the bar of the county, if it be in the county or superior court, to act as special judge to hear and decide, and render judgment in the case in the same manner and to the same effect as such disqualified judge could have rendered, but for his disqualification. Section 5814, Rev. Laws 1910, provides, if the parties cannot agree upon a special judge, where the presiding judge for any legal cause shall be disqualified, for an election by members of the bar for a special judge or a judge pro tempore. Before the parties to a civil action can agree upon one to act as special judge, as provided by section 5813, supra, or elect a special judge, or judge pro tempore, as provided by section 5814, supra, it must appear from the record that the presiding judge, for come legal cause, is incompetent or disqualified from presiding in the given case, and that the person assuming to act as such special judge was agreed upon by the parties, or was elected as provided by said section 5813,supra.

This court takes judicial knowledge of who are the judges of the several courts of record of this state and their signatures (In re Patswald, 5 Okla. 789, 50 P. 139; Shawnee v. Farrel,22 Okla. 652, 98 P. 942; 16 Cyc. 913), but does not take judicial knowledge of a special judge or a judge pro tempore and his signature.

"Generally speaking, the authority of a special or substitute judge must appear from the record of the case in which he acts, although the decisions are not entirely harmonious on this question. Thus the record should, as a rule, show his selection by agreement, appointment, or election; and it should show the grounds thereof, and, in addition thereto, in some states, his eligibility and qualification. The transcript on appeal from the decision of a special judge should contain all facts required to be entered on the record in the court below." (23 Cyc. 608),

In Negley v. Wilson, 14 Ind. 215, it is held that where an attorney other than a regular judge signs a bill of exceptions, the record should show his appointment as special judge. In Lowv. State, 111 Tenn. 81, 78 S.W. 110, it is held that record of the action and qualification of a special judge should be verified by the official signature of the clerk, and will constitute part of the record in the case. The record should show that the person chosen to act as a special judge is an attorney of the court. Perry v. State, 14 Tex. App. 166[14 Tex.Crim. 166]. Where, because of disqualification of the presiding judge, an attorney of the court is appointed by consent of the parties to preside in his stead, the record must affirmatively show that the person so appointed is an attorney of the court. Horton v.Pool, 40 Ala. 629. Where an action is tried by a judge protempore, and not by the legal and judicially recognized judge, the record must show the right of such judge to so act. Cooperv. Lingo, 77 Ind. 67. Where a cause is tried by a special judge, the record should show how he became special judge.Brinkley v. Harkins, 48 Tex. 225. Where there is no legal authority to select a member of the bar to act as a special judge, a lawyer so attempting to act is without power, right, or title, and is not a judge de facto. State v. Fritz, 27 La. Ann. 689.

In Dodd v. State, 5 Okla. Cr. 513, 115 P. 632, Judge Armstrong cites with approval the case of Fordyce v. State, 115 Wis. 608, 92 N.W. 430, in discussing the question as to when the authority of a judge pro tempore ceases, and holds that the authority of a special judge ceases with the elapsing of the term of the court at which he was called to preside over the trial of a certain cause

Presiding Judge Furman, in Patterson v. United States,7 Okla. Cr. 272, 118 P. 150, approves the doctrine of the Wisconsin case, supra, and also the case of Dodd v. State,supra, saying:

"Where the regularly elected judge is disqualified and a special judge is selected by the parties to preside at the trial of a cause, the authority of such special judge ceases at the end of the term of court at which he was selected; and if the case is continued to another term of the court, the special judge has no right or authority to preside at the trial of the case at the second term of the court, unless he is again lawfully selected so to do."

It is thus shown that where a judgment of a special judge is brought to this court for review, the disqualification of the regular judge of the court in which such special judge is to act must be shown by the record; that the special judge is an attorney of the court in which he is to act; that the special judge has been agreed upon or elected, as provided by sections 5813 and 5814, Rev. Laws 1910; that he has taken the oath of office as required by the Constitution of this state. Upon failure of the record, as in this case, to disclose such facts as to the disqualification of the regular judge, the selection or election of A special judge or judge pro tempore, that the person so elected is a member of the bar of the county, and has qualified as required by law, no presumption of their existence can be indulged; and all the acts of such person assuming to act as special judge will be treated here as coram non judice and void; and the judgment rendered by such special judge will be treated as a nullity.

It follows that this cause should be reversed and remanded, with instructions to vacate and set aside the judgment rendered and to retry the case.

By the Court: It is so ordered.