(dissenting): Recognizing to the fullest extent the importance of uniformity and harmony in the decision of this court, and especially in the matter of practice, I dissent from the doctrine announced in the fourth paragraph of the syllabus and the corresponding portion of the opinion.
Realizing the effect of this decision to be forever to put at rest the question of the power of a judge pro teto. in the settling of a case-mad.e for this court, in the absence of further legislation, yet I deem the decision made so utterly and entirely at variance with a correct interpretation and construction of the constitution and statute law of the state with regard to the power conferred on a judge pro tern, that I refuse to sanction the authority of it by my concurrence. In so doing I' attach but little importance to the argument made by some of my associates, that it is better to *833abide by a former decision long concurred in, though | wrong in principle, than frankly to acknowledge the' •error and correct the mistake, as applied to this pres•ent case. That argument is not without great weight when applied to an erroneous decision, long followed, furnishing the foundation of large property rights, but it is unsound when applied to a recent decision which transgresses such a well-known rule of law as “appeals are to be favored,” and acts as a pitfall to ■deprive a party of his day in court for the correction •of errors. In such cases, “nothing is ever settled ■until it is settled right.” New institutions of human ■origin can assert a valid claim to the immortal attribúte of infallibility. With all due respect to the members of this court, past and present, it may be said that this tribunal is not one of the few.
The decision in this case unhesitatingly and without question follows the former decision of Manufacturing Co. v. Stoddard, 61 Kan. 640, 60 Pac. 320, which was rendered in March, 1900, after the judgment in the case at bar and the order for the making, serving and settling of the record had been entered. That ■opinion is directly in point, but it is the first and onlyi case reported from this court that in any manner sanctions or upholds the decision rendered in this. With that decision I do not agree. It is a decision per curiam, evidently rendered without serious reflection or mature consideration, and, on account of its recent announcement, has not been so long followed, or become so hoary with age, or so sacred from precedent, as to render it invulnerable, or, as the reputed lawb of the Medes and Persians, unalterable and unchangeable, though wrong.
The only case cited, referred to or relied upon as authority for the doctrine announced in Manufactur*834ing Co. v. Stoddard, supra, is K. & C. P. Rly. Co. v. Wright, 53 Kan. 272, 36 Pac. 331, and the application of it is made in the following language :
“The above case is, in effect, a holding that the term of office of judge pro tem. 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, or, at least, that if the time for its settlement has been left indeterminate, it-must be determined by a notice given within the' term fixing a definite date for the settlement of the case.”
An examination of the opinion in K. & C. P. Rly. Co. v. Wright will show an utter want of analogy between them. It was not tried by a judge pro tem.; it had no reference to a judge pro tem.; it was nowise connected with or applicable to any act done or power exercised by a judge pro tem.; and in the attempt,to liken the former case to the latter, in which no likeness exists, but which is essentially, inherently and unalterably unlike it, arose the error existing in the decision of Manufacturing Co. v. Stoddard.
The authority for the selection of a judge pro tem. is derived from the constitution. Section 20 of article 3 provides:
“ Provision shall be made by law for the selection, by. the bar, of a pro tem. judge of the district court, when the judge is absent or otherwise unable or disqualified to sit in any case.”
The legislature, in pursuance of its constitutional authority, enacted section 1927, General Statutes of 1901, which provides:
“A judge pro tem. of the district court may be selected in the following cases : First, when the judge shall be sick or absent at the commencement of the *835term; second, when the judge shall be sick or absent himself during or at the close of any term before all the cases pending in the court at the commencement of the term shall have been reached for trial; third, when the judge is interested or has been of counsel in the case or subject-matter thereof, or is related to either of the parties, or otherwise disqualified to sit.”
As shown by the record, the contingency provided against by the third clause in the above act having arisen, the judge pro tem. who presided at the trial of this cause was selected. -In other words, Judge Sturges was selected judge pro tem. on account of a perpetual disqualification of the regular judge in a particular case, and not as a judge pro tem. to preside at a term, or portion of a term, in all cases, on account of the temporary absence, sickness or other disqualification of the regular judge. As to the authority of such judge pro tem. to act after selection, the legislature expressly and ■ in positive terms conferred the same power over the case in which he was selected to .preside, not only while holding court, but in the doing of all other acts connected with the complete and final determination of the case, as the regular judge would have possessed had he not been disqualified. Section 1931, General Statutes of 1901, provides:
“The judge pro tem. shall have the same power and authority as the regular judge, while holding court, and in respect to cases tried before him, or in which he may have been selected to act.”
No process of reasoning, no argument, however labored, no repetition of decisions, no logic, no sophistry will convince the mind that Judge Sturges, having been duly chosen by the bar as judge pro tem. to try the case, did not, by virtue of the foregoing constitutional, and statutory provisions, have exactly the same judicial power over the case, both in open court *836and in respect to its final disposition, as the regularly-elected and qualified judge would have had in the event that he had not been disqualified. This is not only the reasonable and logical meaning to be given to,the constitutional and statutory provisions above quoted but it is the only reasonable or logical interpretation that can be made. If authority be necessary in confirmation of this self-evident proposition, the books are full of adjudicated cases. This court, in the first point in the syllabus of the well-considered case of M. K. & T. Rly. Co. v. City of Fort Scott. 15 Kan. 435, held:
“Under section 1, chapter 85, of the Laws of 1870, a judge pro tern, may, after the expiration of the term at which a case has been tried before him, if within the time allowed by law or the order of the court, settle and sign a case-made.”
In the case of Lerch, Adm’r, v. Emmett et al., 44 Ind. 331, it was held :
‘ ‘An attorney properly called to try a cause, in which the judge of the court is disqualified, has the same power over the case as the regular judge would have had if not disqualified. Hence, as the regular judge might have given time and signed the bill of exceptions after the term, the called or appointed judge may and ought to do so in a proper case.”
In the opinion it was said :
“When a judge is disqualified to try a case, he may, by law, call an attorney to take his place in the trial of the cause. The attorney takes the bench, the judge goes to the bar and tries the case. In such a case, the attorney, or judge pro tern., has all the power of the regular judge over or in the case.”
In Edmond P. Bacon et al. v. The State of Florida, 22 Fla. 46, it was held:
“When a judge of one circuit holds a term'of court *837in another circuit, and during the term an order is entered upon the minutes allowing time after the adjournment for settling a bill of exceptions in a case tried by him, he is authorized to settle a bill after the adjournment of the term and within the time allowed by the order.”
In the case of The State, ex rel. Sansone, v. Wofford, 111 Mo. 526, 20 S. W. 236, it was said :
. “The current of decisions of this court shows that the right of the special judge to hear and determine all motions, grant appeals,- sign bills of exceptions, and in general to make all orders and hear all matters that come before it in the trial and disposition of such case, has always been recognized. (State v. Davidson, 69 Mo. 509; State v. Sneed, 91 id. 553, 4 S. W. 411; State v. Bulling, 105 id. 204, 15 S. W. 367, 16 S. W. 830.)”
In Bank v. Graham, 147 Mo. 250, 48 S. W. 910, it was held:
“A special judge, who had been agreed on and has qualified, retains exclusive jurisdiction of the case, notwithstanding an election of, a successor to the regular, disqualified judge.”
In the case of Staser et al. v. Hogan et al., 120 Ind. 207, 21 N. E. 911, 22 N. E. 990, it was held:
’ “Where a cause is tried before a special judge, and a verdict returned on the last day of the term of court, such special judge has authority to hear a motion for a new trial filed on the first day of the next term, and to make a final disposition of the cause.”
In the case of Hyllis et al. v. State, etc., 45 Ark. 476, it was held:
“The judicial power of a special judge, elected by the bar under article 7, section 21, constitution of 1874, where there is a vacancy in the office, or where the regular judge fails to appear, terminates when the regular judge appears and takes the bench; and he *838has no power after that to try a cause, even by consent, and though the regular judge be disqualified. Consent cannot impart judicial power. But where the regular jqdge is disqualified in a cause, or during the term falls ill, or dies, or becomes unable from any cause to hold the Court, the authority of the special judge elected in his place continues for. the remainder of the term of his election.”
Judge Sturges was selected judge pro tem. in this cause to' preside in the place of the regular judge on account of the disqualification of the regularly elected judge to try it, and not to preside generally at the term on account of the absence or sickness of the regular judge. The disqualification of the regular judge in the case at bar was absolute and unending, and, by force of necessity, the jurisdiction and power of the judge pro tem., chosen for this reason, terminated only with a final disposition of the case. Must we not then look to the power of a trial judge remaining in office as the measure Of the power of a judge pro tem. to settle a case by him tried, rather than to the power of a trial judge whose term of office has-expired? And must we not so measure his power for two reasons, either of which is amply sufficient: (T) Because the statute so declares ; (2) because the legislature has expressly dealt with the power of a judge whose term of office' has expired to settle and sign a case?
Section 549 of the code (Gen. Stat. 1901, §5035) provides:
“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 im all respects as if his term had not expired.”
This provision has reference to one subject and but *839one. It grants power, under certain conditions, to a judge whose term of office has expired to settle a case tried by him. By necessary construction it must exclude every other subject. It has no reference to the power of a regular judge in office, nor has it reference to any power conferred on a judge pro tom., who has no term of office, and is authority for the acts of neither. What, then, is the measure of power of the regular judge in office to sign and settle a case tried by him? This court has uniformly and without departure held to the rule that where a case is made and served within the time given by .the trial court, or a valid extension of such time, it may be settled by the trial judge at any time within a year from the date of the judgment sought to be reviewed ; and the limitation of one year is fixed, not because the trial judge has lost jurisdiction or power to settle the' case, but because of the provision contained in section 556 of the code (Gen. Stat. 1901, §5042) limiting the period within which proceedings in error may be commenced in this court, (Hill v. National Bank, 42 Kan. 364, 22 Pac. 324; Toof v. Cragun, 53 id. 139, 35 Pac. 1103, Benham v. Smith, 53 id. 495, 36 Pac. 997.)
Upon the trial, the court, in entering judgment, made the following order :
“And thereupon, and upon application of the defendant, the court for good cause shown and by order extended the time until and including the 15th day of March, 1900, within which said defendant may prepare and serve a case-made herein for the supreme court in the above-entitled case on said plaintiff or her attorneys; and the plaintiff was allowed twenty days thereafter within which to suggest and serve amendments thereto ; said case-made to be settled on ten days’ notice-in writing by either party.”
The case was made and served within the -time so *840given ; amendments were suggested within time, and the case was settled ,and allowed by the judge in strict conformity to the order so made. That the court had j urisdiction and power to make this order is conceded ; that the order so made was obeyed by the parties is conceded ; yet, when so done, the act of the trial judge in settling the case is declared void and insufficient to confer jurisdiction upon this court to review the errors alleged to have been committed upon the trial, and upon what ground? Because the term of the judge pro tem. had expired. Neither the constitution nor the statute fixes or pretends to fix a term of office for á judge pro tem. In this instance, he was selected to preside because of the perpetual disqualification of the regular judge in this particular case. As has been seen, in presiding he exercised exactly the same power under the law that the regular judge would have exercised had he not been disqualified — neither more' nor less. He had power under the constitution and statutes ; he did not have a term of office. The word “term,” when used in reference to the tenure of office, means ordinarily a fixed and definite time, and does not apply to appointive offices held at the pleasure of the appointing power.” (Mech. Pub. Off. § 385; Speed & Worthington v. Crawford, 3 Metc. [Ky.) 207.) “The word ‘term’ is uniformly used to designate a fixed and definite period of time.” (Throop, Pub. Off. §303; Gibbs v. Morgan, 39 N. J. Eq. 126.)
By what statute, upon what authority in the law, written or unwritten, by what process of reasoning, do my associates determine that Judge Sturges, as judge pro tem. in this particular case, selected on account of the disqualification of the regular judge to try it by reason of his interest in the action, not only had a term of office, but the precise day of the expi*841ration of such term, that they may declare the provisions quoted from section 549 of the code (Gen. Stat. 1901, §5035) applicable to his acts, and thus declare the same void or valid?
The foregoing decision, following the case of Manufacturing Co. v. Stoddard, supra, is based upon the erroneous assumption that Judge Sturges, as judge protem., had a term of office, and that such term of office expired on the last day fixed by him for the suggestion • of amendments to the case-made. There being ample power granted by the organic and statutory law of the state for the selection of Judge Sturges as judge. pro tem. in this case to hear and finally determine the case and all matters connected therewith, and there being no law, constitutional or statutory, fixing a term of office for such judge pro tem., or prescribing the length of such term, the proviso in section 549 of the code, prescribing the conditions upon which a trial judge whose term of office has expired may settle a case-made, earn have, and does have, no possible application to this case. This court could, in my judgment, with just as much propriety, and the same sanction of law, hold his jurisdiction and authority over the case to- have ended at the return of the verdict, or the rendition of the judgment, or other step in the progress of the case, as at the point designated, for any determination short of the full and complete disposition of the entire case and all necessary orders therein must of necessity result in hardship to some party litigant and be equally violative of the law.
I am fully convinced and satisfied that, under the constitutional and statutory authority conferred upon Judge Sturges by his selection as judge pro tem. in this case, the order by him made with regard to the making," serving and settling of a case-made for review of *842errors in this court was valid — valid, notin part, but in its entirety; that, as the case was made and served within the time given, and as it was settled within one year from the date óf the rendition of the judgment, and filed in this court, the act of settling was strictly within the terms of the order made and the provisions of law in that respect. That such was the grant of jurisdiction and power conferred in clear and unmistakable terms, I have no doubt. That the act of settling the case in the exercise of that power is valid, and should be upheld by this court, is indisputable.
Cunningham, Greene, JJ., concurring in the dissenting opinion.