After the foregoing case had been argued, submitted and, after the court had considered it in conference, it had been assigned for written opinion, and after the foregoing opinion had been drafted, it was suggested by letter addressed to the court that the court was without jurisdiction, because the record discloses that the case was tried by Judge Bryan, but the reporter's transcript was settled by Judge Sutton, junior district judge.
Not one of the many cases cited is in point. In each and every one of them there had been no settlement of the transcript at all, a very different situation from the one presented here, where the formal order of Judge Sutton appears.
C. S., sec. 6497, provides:
"In the case of a vacancy in the office of any district judge, or in his absence front the judicial district or state, or his sickness or inability to act from any cause, motions *Page 48 may be made before, or orders granted by, any other district judge, who shall have the same jurisdiction under this chapter as though he was the judge of said district, and orders, writs and judgments entered by such judge shall be made matters of record as herein directed and have the same effect as though made by the judge of said district."
Nothing could be more positive than the concluding clause of this section; and, if applicable to a judge from an outside district, how much more applicable would it be to a judge whose immediate jurisdiction is coextensive with that of the other judge of the same district.
There is nothing in the record to show why Judge Sutton acted, or whether such a situation prevailed as is required by C. S., sec. 6497. But this is taken care of by the presumption that a judge in making an order does his duty and acts within his jurisdiction. (22 C. J. 128, par. 68; Young v.Chesapeake etc. R. R. Co., 136 Ky. 784, 125 S.W. 241.) In fact, this presumption, in the present state of the record, would be conclusive without the help of C. S., sec. 6497. (Kettenbach v. Walker, 32 Idaho 544, 186 P. 912.) There is nothing in the contention.
Givens, C.J., and Budge, Varian and McNaughton, JJ., concur.