Bradley v. Chestnutt-Gibbons Grocer Co. , 35 Okla. 165 ( 1912 )

Defendant in error brought this action in the court below against plaintiffs in error to recover on a promissory note the sum of $2,000 and interest at eight per cent. per annum. The regular elected judge of said court announced his disqualification to sit in said cause, and a special judge, after due notice was given to all concerned, was duly elected by the members of the bar, as provided by law, to try said cause. The cause was tried to the court without a jury, who found the issues in favor of defendant in error and rendered judgment accordingly. Plaintiffs in error filed a motion for a new trial, which was overruled by the court, and the case is now before us on petition in error and case-made.

Plaintiffs in error, in their brief, urge but one ground for reversal of the judgment, and that is: "Irregularity in the proceedings for the election of the special judge." The record before us does not disclose that any objections or exceptions to the election of the special judge were made in the court below. Defendant in error has asked that the judgment of the court below be affirmed, for the reason that plaintiffs in error have raised, for the first time on appeal, the question of irregularity in the election of the special judge; and the record therefore presents nothing to review. The motion to affirm should be sustained. It is a well-settled rule of law that where parties try their case before a special judge, or a judge pro tem., and no objection is made or exceptions saved in the court below as to the authority of the judge to try the case, all objections to the authority of the special judge will be assumed by the appellate court to have been waived; and said objection cannot be heard for the first time on appeal. Higbyv. Ayres, 14 Kan. 332; Vandever et al. v. Vandever et al., 3 Metc. (60 Ky.) 137; Feaster v. Woodfill, 23 Ind. 493; Greenwoodv. State, 116 Ind. 485, 19 N.E. 333. See, also, 11 Encyc. of Plead. Prac. p. 793, and authorities there cited.

The judgment of the trial court is affirmed.

All the Justices concur.