Missouri Pacific Railway Co. v. Preston

The opinion of the court was delivered by

Smith,- J.:

This case was first decided and affirmed January 5, 1901. (63 Pac. 444.) A rehearing was granted later, and the questions involved have been fully reargued before the whole court, since it was enlarged by the addition of four justices, elaborate briefs being filed covering the points discussed by counsel.

Judge Sturges, of the twelfth judicial district, Was called upon to try this case, after a mistrial before' Judge C. W. Smith, of the thirty-fourth district, and he acted as judge pro tern. At the May term, 1899, Judge Sturges was duly selected by the bar as judge pro tern., and took the prescribed oath that he would' faithfully perform the duties of such judge at that term. Upon application of the railway company, the trial of the case was continued to the October term, 1899, “both plaintiff and defendant agreeing thereto, and consenting to the trial thereof by said judge,”' according to the record.

1. Judi?e pro tern. faoto3udgede It is contended that when Judge Sturges left his judicial district and was chosen by the bar to act as judge pro tern, and preside at the trial of - . - _. . _ *fils case, then pending m the twenty-first judicial district, in Marshall county, and when he accepted the trust, he was disqualified so to do, in that he violated that part of section 13 of. article 3 of the constitution, which reads: “Such . . . judges shall receive no fees or perquisites nor hold any other office of profit or trust under the authority of the state,” etc. Conceding - this claim to be sound, the disqualification complained of was no more complete than it would have been had an alien or a minor been chosen in the same way to sit as judge in the case. We are quite clear that the judicial acts of Judge Sturges performed in this case were those of a judge de facto, and are not subject to attack in a collateral way. After a review of all the authorities, Van Fleet, in his work on Collateral Attack, section 23, says :

“When a person has an appointment to act as judge of a court, which he and the officers of the court adjudge to be valid; and he takes possession of the court and acts, supported by the power of the state, he is a judge de facto.”

In the present case, Judge Sturges was recognized by the sheriff, clerk, and attorneys, including the counsel for the parties to this action, who consented to his trial of the cause, and no challenge of his authority or right to sit was made until long after his tei’m of office as judge pro tem. had expired, and then, for the first time, in this court. ■

2' attStbyóon“ Whether jurisdiction may be conferred by consent is not involved ; but the question is presented whether the acts of a de facto officer, having color of title to the office, who, while in the performance of his duties, is generally recognized by all persons concerned in the work he is performing, can be questioned in a collateral way, or in any manner except by a proceeding on behalf of the state to which such officer is made a party. In the case of State v. Carroll, 88 Conn. 449, 9 Am. Rep. 409, it was held that no color of right derived from an election or appointment is necessary in order to constitute an officer defacto. In that opinion, rendered by Chief Justice Butler, which has been said by Judge Redfield to be one of the landmarks of the law, it was said :

“An officer defacto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised:

“1. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry to submit to or invoke his action, supposing him to be the officer he assumed to be.

“2. Under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like.

“3. Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of sdme defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public.”

The application of this decision to the case at bar is found in the second and third subdivisions.

The constitution of Vermont provides that no person holding any office of profit or trust under the authority of congress shall be eligible to any appointment under the legislature, or to hold any executive or judicial office under the state. A postmaster was elected justice of the peace, and in a suit before him the defendants pleaded to the jurisdiction, alleging that at the time the summons issued he was a postmaster under the authority of congress and ineligible to hold a judicial office. The court held that a demurrer to this plea was rightfully sustained; that the justice was, an officer defacto, and his judicial authority could not be questioned in that way. (McGregor v. Balch et al., 14 Vt. 428, 39 Am. Dec. 231. See, also, Gregg Township v. Jamison, 55 Pa. St. 468; Ostrander v. People, 29 Hun, 513.)

In the late case of The State v. Williams, 61 Kan. 739, 740, 60 Pac. 1050, it was said:

“It is a general rule of universal application that a person who receives an appointment to an existing office from those having authority to appoint, and qualifies and enters upon the discharge of the duties of the office, is a de facto officer, although he may be ineligible by reason of being a non-resident, a minor, or an alien. The acts of an officer who comes into-possession of an office under the forms o.f law, and who assumes to act under such an appointment as-Chapman had, are deemed to be legal and binding as-to the public and all persons who have any interest in the things done by him. The acts of a de facto judge 'cannot be collaterally attacked, and his right to, the-office is not open to question except in a direct proceeding brought by the state ; and this is true in a case where the officer is incapable of holding the office.” (See, also, Hunter’s Adm’r v. Ferguson’s Adm’r, 13 Kan. 462; Hale v. Bischoff, 53 id. 301, 36 Pac. 752.)

The decision quoted completely covers the question under discussion here. Judge Sturges was not a usurper in any sense. He was selected in the manner prescribed by the statute, by the members of the bar present. He took the statutory oath of office, and thenceforth was recognized by all the officers of the court, and by the parties litigant, as having such authority as the regular judge might have exercised had he presided in the case. The difference between a usurper and an officer de 'facto is pointed .out in Hamlin v. Kassafer, 15 Ore. 456, 15 Pac. 778, 3 Am. St. 176.

In The State, ex rel., v. Comm’rs of Garfield Co., 54 Kan. 372, 38 Pac. 559, the county of Garfield, by a judgment in a proceeding in quo warranto brought in this court, was dissolved, and adj udged to be an unconstitutional and void organization, for the reason that it contained a geographical area of less than 432 square'miles, contrary to section 1 of article 9 of the constitution. Later, however, in Riley v. Garfield Township, 54 Kan. 463, 38 Pac. 560, it was held that from the time the county was erected until its dissolution by this court it had a de facto existence, and that debts created by it during that time were valid and collectable. In Garfield Township v. Croker, ante, p. 272, 65 Pac. 273, it was decided that a superintendent of public instruction of Garfield county before its dissolution was a de facto officer, and his right to exercise the duties of such office could not be inquired into in a collateral action to which the officer was not a party.

3. Oath of office— presumption The de facto power of Judge Sturges was hot diminished or impaired after the continuance of the case from the May to the October term. It is true that he took and subscribed an oath on the 23d day of May, 1899, to perform faithfully the duties of a judge pro tem. of the district court of Marshall county, at the regular May term, 1899. The record of his appoint-_ _ _ . _ ment shows that he was unanimously chosen by the bar to try this and other causes. íle was not divested of his judicial authority by a failure to take and subscribe the oath required of a judge pro tem. for the October term. (In re Hewes, 62 Kan. 288, 62 Pac. 673; State v. Carroll, supra, subd. 2 of opinion quoted.) The record is silent as to whether another oath was taken by him at the October term, and, if it were necessary to uphold his acts at that time, we would presume that this silence was favorable to the regularity and validity of the proceedings of the court, and not against them. (Garden City v. Heller, 61 Kan. 767, 60 Pac. 1060.)

Counsel for the railway company assert that they recognized Judge Sturges as a “called-in” judge, under chapter 108 of the Laws of 1897, and hot as a judge pro tem. In the case of In re Hewes, supra, it was held that when a district judge is called from his own district to hold court in a county within another district, and is then selected by the members of the bar as a judge pro tem., his authority to hold court in the latter district is derivable from his election as judge pro tem. * When discussing the right of Judge Sturges to sit at the October term, counsel are strenuous in their insistence that their consent for him to do so could not confer jurisdiction, and that such consent did not cure the errors committed by the regular judge in his refusal to grant the railway company a change of venue to another county in February, 1899. Apart from the question whether jurisdiction can be conferred by consent, errors committed in the progress of a trial are often waived. Parties may conduct themselves in a manner which shows .that a previous objection to an erroneous ruling has been withdrawn or waived. A demurrer to the evidence may be improperly overruled for lack of testimony to sustain the plaintiff’s case, yet, when the defect is supplied by the defendants, the error is cured. (Simpson v. Kimberlin, 12 Kan. 579.) So, if a change of venue be improperly granted, if the parties appear and proceed to trial without objection, the error is waived, no matter how valid were the objections made to the change in the first instance.

We direct attention again to the language used in the journal entry continuing the case from the May ■to the October term, as follows : “Both plaintiff and defendant agreeing thereto, and consent to the trial thereof by said judge.” ' If the venue had been changed by Judge Glass upon application of the railway company, when its motion was heard, and the ■case sent for trial to another county, it was certainly within the power of the parties, by stipulation, to agree that the order changing the venue might be set aside and the case tried in Marshall county. As bearing on this question, see Vaughn v. Hixon, 50 Kan. 773, 32 Pac. 358; Stow v. Shay, 54 id. 574, 38 Pac. 784; Garden City v. Heller, 61 id. 767, 60 Pac. 1060. Counsel for defendant below, after their application for a change of venue had been overruled by Judge Glass, went to trial without objection before Judge Smith, which trial resulted in a disagreement of the jury. Thereafter they agreed that Judge Sturges might try the case, which he did. After the verdict they moved for a judgment in their favor on the findings. Now they appeal to this court to correct errors committed against them by the last judge. During all these proceedings, there was never a suggestion coming from the counsel for the railway company that the case ought to be tried in another county, but there was complete acquiescence in the right of Judge Smith ,and Judge Sturges to sit and finally determine the case on its merits.

The motion for a change of venue presented to the regular judge in February, 1899, set forth two grounds : (1) That Judge Glass was interested, having been of counsel in the case ; (2) that the inhabitants and taxpayers of Marshall county were prejudiced against the railway company to such extent that it could not have a fair trial in that county. No proof was made in support of the latter reason for the change, and no claim is made here that the court erred in overruling the application on the ground asserting prejudice of the inhabitants. The object of counsel in seeking for a change of venue on the first ground was to have the case tried before a judge who was disinterested. This was accomplished by the coming of Judge Sturges and his selection as judge pro tem. The contention of counsel for plaintiff in error is reduced to the claim that the court erred in bringing a disinterested judge-into Marshall county to try the case, instead of sending the case out of Marshall county to a disinterested judge to be tried.. If the case had gone to the judge, they would have been satisfied, but, because the judge came to the case, they now complain. A disinterested judge was secured, and this is what counsel were seeking in their application for a change of venue.

4. Term of office-settlement ofcase-made. In the original opinion, it was held that the case-made was settled and signed after the term of office of the judge pro tem. had expired, and, for that reason, it was stricken from the record. On October 13,1899, the motion of defendant below for a new trial was overruled, and the court extended the time to March 15, 1900, within which period defendant might prepare and serve on plaintiff’s attorneys a case-made for this court; and plaintiff * below was allowed twenty days thereafter to suggest and serve amendments, the case-made to be settled and signed upon ten days’ notice in writing by either party. The case was served on counsel for plaintiff below on February 21, 1900, and, no'amendments being suggested, the latter gave notice that it would be presented to the judge for settlement on April 23, 1900, and it was signed and settled on that date. It was held in the former opinion that the term of office of the judge pro tern, expired on April 4, •1900, which was the last day fixed by his order for serving amendments. That part of the statute applicable to the question reads-:

“In all causes heretofore or hereafter tried, when the term of office of the trial judge shall have expired, or may hereafter expire, before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired.” (Gen. Stat. 1901, §5035.)

In Manufacturing Co. v. Stoddard, 61 Kan. 640, 60 Pac. 320, after quoting from K. & C. P. Rly. Co. v. Wright, 53 id. 272, 36 Pac. 331, the court said:

“The above case is, in effect, a holding that the term of office of a judge pro tern, is limited to such specific periods as he sets for the making and service of the case and the suggesting of amendments thereto, and the settlement of the case, and that, if within such term of office no time is fixed for the settlement of the case, such term cannot be prolonged by specifying an indeterminate period within which the parties may come before him for the settlement of the case.”

In K. & C. P. Rly. Co. v. Wright, supra, it was said :

“The only contingency which warrants an ex-judge in settling and signing a case is that at the expiration of his term the time was actually fixed for making or settling and signing the case.”

It is contended that the writer of the opinion in the latter case, in referring to the section of the statute in question, misstated the language of the law by saying that, when the term of office of a trial judge shall expire during the time fixed for making or settling and signing a case, it shall be his duty to sign and settle the case in all respects as if his term had not expired. Conceding the-misstatement, we do not think it affected the decision. If a case is settled before the last day fixed for the doing of that act, it is settled during the time appointed. The interpretation placed upon the statute by the decisions from which W6 have quoted has been applied in many cases not reported, where the question arose on motions to dismiss. The .explicit rulings in the two cases mentioned have left no ground for the profession to be misled, and we have not been. convinced that they are unsound in principle or that they are based on a misconstruction of the statute. Stability in' the decisions should be maintained, if possible, on questions of practice. In Stone v. Boone, 24 Kan. 337, 341, Chief Justice Horton, speaking.for the' court, said :

‘ ‘ There seems to be running through the entire body of judicial decisions the doctrine that judges ought not to disturb prior rulings of the same court except for cogent reasons; as some express it, ‘only where the decision is flatly absurd or unjust,’ as the certainty of the rule is often more important than the reason of it.”

s. stay of exeon^tion' It is claimed that, because the judge pro tem. ordered that execution be stayed on the judgment until the case-made was settled, he retained jurisdiction until a settlement was in fact made. This order could have no reference to any other settlement than an effectual one, made before the judge lost jurisdiction of the case.

6, Findings approved. For the foregoing reasons, the matter contained in the case-made cannot be considered. We have reexamined the findings of the jury contained 'in the transcript of the record and conclude that they do not overturn the general verdict, nor that they are so inconsistent with one another as to justify a new trial.

The judgment will be affirmed.

Johnston, J., concurring.