The fundamental error of the majority opinion is the assumption that in a proceeding in the Scott circuit court an order was made overruling a motion for a new trial which had been held in the Logan circuit court. Of course, this could not be done, but I submit that a proper interpretation of the order overruling the motion for a new trial does not support the finding on which the majority base their action in striking out the motion for a new trial.
It must be remembered that the purpose inducing the exchange of circuits was that Judge Kincannon, the judge of the circuit of which Logan county is a part, was disqualified to preside at the trial of the cause in which the exchange agreement was entered. The records of the Logan circuit court, in which the agreement was entered, after giving the style of the case, proceeds to recite, in its first sentence, that "The presiding judge, J. O. Kincannon, declares his disqualification, and Judge J. Sam Wood, of the 12th circuit, on exchange, agrees to try the case, and the following agreement is filed." It is there recited that the exchanging judges "have agreed to exchange circuits for the length of time as may be necessary to try the case of H. A. Tatum et al. v. Sinclair Refining Company, No. 1981, * * *." This, of course, is the case here under consideration.
It is apparent that this case is distinguishable on the facts from the case of Kory v. Dodge, 174 Ark. 1156,298 S.W. 505, which appellant cites and relies upon in the brief to dismiss the motion for a new trial. In the Kory case, as the opinion expressly recites, the exchange agreement was effective "for the date of Thursday, September 22, 1927." Beyond and after that date the exchange of circuits was not effective. The agreement in the instant case contains no such limitation as to time. On the *Page 68 contrary, it is recited that the agreement shall be effective "for the length of time as may be necessary to try the case of H. A. Tatum, et al., v. Sinclair Refining Company, No. 1981." The disposal of a motion for a new trial is, of course, a part of the agreement. If the regular presiding judge was disqualified to try the case, as he certified himself to be, the disqualification would extend to the disposition of the motion for a new trial. The court order, copied in the majority opinion, does not profess to be an order of the Scott circuit court, nor is it, in my opinion, susceptible of that construction. It is true it was made at Waldron, in Scott county, and it is true that Judge WOOD refers to himself as the court, but there is nothing in the record to support the statement that the Scott circuit court was in session. To what court did the order refer? The caption of the case answers that question. It was the court in which the case of Tatum v. Sinclair Refining Company was pending, which was the Logan circuit court, and not the Scott circuit court. If the question were otherwise in doubt the certificate signed by Judge WOOD would remove the doubt. He signs himself as "Judge on Exchange." Certainly he was not the judge of the Scott circuit court "on exchange," for that county is a part of the circuit of which he is the regular judge. The order in question was, therefore, made by the judge of the Logan circuit court having jurisdiction to dispose of any motion essential to the completion of the trial of Tatum v. Sinclair Refining Company, as the exchange agreement expressly provides. If further discussion of this question is not superfluous, it may be said that the order was entered, not upon the records of the Scott circuit court, but upon those of the Logan circuit court, where, as all parties must have understood, it was intended to be.
In the case of Brown Hackney v. Covington,131 Ark. 243, 199 S.W. 87, the facts were that circuit Judge Wood presided at a trial in one of the counties in the circuit of Judge Evans. Later Judge Evans, and not Judge Wood, approved a bill of exceptions in the case. It was held that this was error, as the bill of exceptions should have been submitted to and approved and signed by the *Page 69 judge who presided at the trial. A headnote in that case reads as follows: "Where a cause is tried by a judge sitting on exchange, he alone can approve the bill of exceptions."
It appears to me that the only question of doubt, or difficulty, in the instant case is whether the personal, physical presence of Judge WOOD at the seat of the Logan circuit court was indispensable when he directed the entry of the order overruling the motion for a new trial. The practice here followed conforms to the long usage of all judges presiding in courts consisting of several counties, as does the circuit of which Logan county is a part, where all extension of time is given for the filing of a motion for a new trial. The practice prevails also in settling and signing bills of exceptions where time for their preparation is given to a date beyond the expiration of the term at which the trial was had. The practice is universal to present the bill of exceptions for approval and signature to the presiding judge "wherever he may be found," which is usually in some other county where the judge has gone in his travel of his circuit as the law requires him to do. When the bill of exceptions has been approved, directions for its filing are given, not in the court where the judge chances then to be, but in the office of the clerk of the court where the trial was had.
What good reason is there why the same practice should not be followed, when time has been extended for filing a motion for a new trial, as is nearly always done in the case of bills of exceptions? If we want to be technical, and not practical, why not stand upon the transcript as certified by the clerk of the trial court as reflecting the proceedings of the court? We do know from the record properly before us that the court adjourned to April 8, 1936, which was the date on which Judge Wood overruled the motion for a new trial.
Confining myself to the record before us, I do not judicially know that the conditions named in 1314, Crawford Moses' Digest, which the majority quote, do not apply. If they do apply, the motion for a new trial could properly have been overruled by Judge Wood as *Page 70 presiding judge "wherever he may be found." At any rate, this section is authority for saying that it is not required in all cases that the trial court must actually be in session when an order overruling a motion for a new trial is made.
In the chapter on Judges in 15 R.C.L., page 521, appears the following statement of the law: "In a legal sense the judge of a court is the court, and where a court is composed of only one judge the act of the court is the act of the judge, so that, oftentimes, no distinction can be made between the powers and duties of a judge and those of the court over which he presides. The duties of the office include all those which fairly he within its scope, those which are essential to the accomplishment of the main purposes for which the office was created, and those which, although incidental and collateral, are germane to or serve to promote or benefit the accomplishment of the principal purposes. All such duties are official, and the incumbent is obliged to perform them, and additional duties of this character may be imposed on him by legislation enacted during his term of office. Duties not so related to an office are unofficial, cannot, as a general rule, rightfully be attached to it, and the incumbent is not obliged to perform them. A judge may not delegate the performance of judicial acts, even with the consent of parties. Judges of the superior courts, though assigned to particular counties, are not county officers, but belong to the judicial department and perform state functions in the discharge of their official duties; and they may be required to perform these duties in counties attached to their judicial districts after their election. Whether a judge may lawfully exercise his judicial power outside the territorial limits of his circuit or district has not been definitely decided, though the question has been considered in several cases without either sanctioning or condemning the practice; but it may be inferred that even if orders so made are irregular, they are probably not considered void."
In my opinion the majority have announced a rule which contravenes the long established usage of trial *Page 71 judges, and which makes the practical administration of the law more technical and expensive, alike to the judges themselves and to opposing counsel, and also to the counties which must pay the operating expenses of courts.
I, therefore, dissent, and am authorized to say that Mr. Justice McHANEY concurs in these views.