Original proceeding in prohibition. Cause submitted on the pleadings. Relators challenge the authority of Hon. Paul D. Higbee, Judge of the First Judicial Circuit, to preside at the trial of Fleming v. Dunlap et al., in the Circuit Court of Mercer County in the Third Judicial Circuit.
Hon. A.G. Knight, Judge of the Circuit Court of Mercer County, had been of counsel or otherwise disqualified in a number of cases pending in that court at the April term, 1929. At said term and on July 1, 1929, he made an order disqualifying himself in Mudgett v. Alley, Administrator, and called Judge Higbee to hold a part of the September term, 1929, of the Circuit Court, Mercer County, commencing on the first day of said term, and preside as judge on the trial of said cases. In response, Judge Higbee appeared in said court on said day. At that time and before he proceeded to try the cases, relators, defendants in the case of Fleming v. Dunlap et al. (one of the cases in which Judge Knight was disqualified), presented to the court, Judge Knight presiding, an application for a change of venue, therein alleging that Judge Knight had been of counsel in said case and praying for a transfer to another circuit. Judge Knight refused to consider the application and called Higbee to the bench, who proceeded to call the cases for trial, among them the case of Fleming v. Dunlap et al. When the Fleming case was called, plaintiff did not answer and it was passed. After attention to other matters, Judge Higbee, without again calling the Fleming case or in any way undertaking to proceed with a trial of said case, vacated the bench in favor of Judge Knight, who proceeded with business of the court.
Thereafter during the September term, 1929, and on November 1, Judge Knight entered another order in said case in which he reviewed the order of July 1; then entered of record Judge Higbee's doubt of his authority to try the Fleming case because it was not mentioned in the order of July 1; then entered of record his (Judge Knight's) disqualification to try said case; then entered of record a call to Judge Higbee to try said case; then overruled relators' application for a change of venue and set the case for trial November 28, 1929. Thereafter during the September term, 1929, and on November 28, Judge Higbee appeared in the Circuit Court of Mercer County as judge of said court and entered of record in the Fleming case the following: *Page 1070
"This cause having been set for trial for Thursday, November 28, 1929, and Hon. A.G. Knight, Judge of the Circuit Court of Mercer County, having disqualified himself to sit as judge in the case and having called the undersigned in to try said cause, and it being impossible for the undersigned to try said cause on said date, it is hereby ordered that this cause be continued until the December term, 1929, of this court and this cause is ordered docketed for trial on Monday, December 16, 1929.
"PAUL D. HIGBEE, "Judge of the First Judicial Circuit and Special Judge in said cause."
His further efforts in the cause were prohibited by our rule in prohibition.
The record in this proceeding does not present a question of jurisdiction. It is a question of error. [In re Drainage District v. Richardson, 227 Mo. 252, l.c. 261, 126 S.W. 1021.] However, the writ having been issued, we will determine the question in this proceeding.
I. The parties did not consent that Judge Knight preside, or agree on a special judge, or request the election of a special judge. In this situation relators contend thatDisqualified Judge Knight having been of counsel could onlyRegular Judge: transfer the case to another circuit. They citeJudge of as sustaining the contention Section 908,Another Circuit. Revised Statutes 1929, which follows:
"If the judge is interested or related to either party, or shall have been of counsel in the cause, the court or judge shall award such change of venue without any application from either party, unless all the parties in the cause consent that such judge may sit on the trial thereof, or a special judge for the trial thereof be agreed upon by the parties, or elected in the manner provided by law."
It is also provided in Section 911, Revised Statutes 1929, that on reasonable notice, a change of venue shall be awarded to a county where the causes complained of do not exist; provided, that where the application is founded on the interest, prejudice or other objections to the judge or judges, a change of venue shall not be awarded to another county if the parties shall thereupon agree on a special judge, or, if both parties request the election of a special judge to be held under Sections 1943, 1945 and 1946, Revised Statutes 1929.
Thus it appears that a disqualified judge in a civil case is not authorized by the change-of-venue statute to call another judge to try the case. He must, under said statute, transfer the case to another circuit, unless the parties consent that he may preside, or agree on a special judge, or request the election of a special judge. *Page 1071
But respondent contends that Section 29, Article VI, Constitution, authorizes a disqualified judge to call another judge to try a case in which he is disqualified. In other words, that a regular judge being disqualified may, under the change of venue statute, transfer the case to another circuit, or, under Section 29, Article VI, Constitution, call another judge to try the case.
The answer to those contentions must be found in the interpretation to be given to said section of the Constitution, which follows:
"If there be a vacancy in the office of judge of any circuit, or if the judge be sick, absent, or from any cause unable to hold any term or part of term of court, in any county in his circuit, such term or part of term of court may be held by a judge of any other circuit; and at the request of the judge of any circuit, any term of court or part of term in his circuit may be held by the judge of any other circuit, and in all such cases, or in any case where the judge cannot preside, the General Assembly shall make such additional provision for holding court as may be found necessary."
That part of the section authorizing circuit judges to hold court in other circuits under the circumstances mentioned, if requested to do so by the regular judge, is self-enforcing. Obviously, said part discloses only an intention to make provision for a judge to hold a term or part of a term and dispose of such business as may be for disposition during said term or part of term. There may be only one case or many cases on the docket for disposition during said term or part of term. That part of the section in no way undertakes to provide for the trial of a particular case or cases.
But respondent argues that a judge is unable to hold that part of the term occupied on the trial of a case in which he is disqualified. We do not think so. Of course, he could not try a case in which he was disqualified, except by agreement of the parties; but disqualification in a particular case does not render him unable to hold said part of the term and dispose of other business, if any, pending on the docket. Indeed, he was holding the court when the respondent appeared in answer to the call. He vacated the bench in favor of respondent, and when respondent vacated the bench, he took charge as the regular judge and proceeded with the business of the court. By that part of the section it was only intended to provide a substitute for the regular judge to prevent a failure of the term or part of term of court.
We ruled the question in Gale, Administrator of Maupin, v. Michie, 47 Mo. 326. At that time it was provided in Section 17, Article VI, Constitution of 1865, that if the judge be sick, absent, or from any cause unable to hold a term of court, he was authorized to call another judge. We held this provision did not authorize a disqualified judge to call a judge to try a particular case. There *Page 1072 is nothing in the opinion to indicate we would have ruled otherwise if the section had expressly provided for calling a judge to hold a part of term. We then ruled that a provision for holding court did not authorize a disqualified judge to call a judge to try a particular case. However, in ruling the question, the learned judge stated that "the judge of a circuit may procure another judge to hold a term of court, giving up to him the whole business of the term." If this is ruling that a judge could not under this provision of the Constitution call another judge to hold part of a term, we do not agree to the statement. Authority to call a judge to hold a term authorizes a call to hold part of a term. The Constitution of 1875 provided for a call to hold part of a term, thereby expressly providing against the failure of a part of a term as well as failure of a term. It may also be stated that a judge called to hold a term or part of a term is not required to dispose of "the whole business of the term," or part of term. The regular judge, being able and present, may take charge of the court when no business is in the course of disposition.
In State v. Shea, 95 Mo. 85, 8 S.W. 409, we had under consideration the provision of the Constitution of 1865 providing for another judge to hold a term of court, and the provision of the Constitution of 1875 providing for another judge to hold a term or part of term of court. In that case the defendant on November 7, 1882, escaped from jail while his motion for a new trial was under submission. On November 18, 1882, the motion was overruled. On July 20, 1887, defendant was brought to court for sentence. The regular judge, having been of counsel, called the judge of another circuit to sentence the defendant. We held he was not authorized to do so. As sustaining this ruling, we cited Gale, Administrator, v. Michie, supra, and set forth that part of the opinion in that case containing Section 17, Article VI, Constitution 1865. We also set forth Section 29, Article VI, Constitution 1875.
We also cited as sustaining the ruling, Lewis v. Curry,74 Mo. 50, in which we held that a regular judge was not authorized to call another judge to take the acknowledgment of a sheriff's deed to which the regular judge was a party.
In the Shea case and the Lewis case it was not contended that the provisions of the constitutions of 1865 and 1875 providing against the failure of a term or part of term authorized the calling of another judge to preside in a particular case.
In Texas Pacific Coal Co. v. Ready, 198 S.W. (Tex.) 1034, the regular judge announced that he was unwilling to preside at the trial for the reason that he would resign on September 1st following and accept employment as attorney for said company. He declined to preside under authority of a statute which authorized the practicing lawyers to elect a special judge when the regular *Page 1073 judge "shall be absent, or shall be unable or unwilling to holdthe court." The practicing lawyers elected a special judge, who tried the case. On appeal it was held that the special judge was without authority, and the judgment void. In ruling the question it was said.
"The record discloses that he was present at the court, remained in his office in the courthouse, transacting other business pertaining to his duties as district judge. The record simply shows that the regular judge for personal reasons was unwilling to try the pending cases against appellant, and, believing that he had a right to refuse to try them, did so refuse. How can it be said that a judge is unwilling to hold court when he is present at the court, present at the court, present in his office in the court house, and there transacting business pertaining to the duties of his court? A judge so acting cannot be considered as unwilling to hold the court within the meaning and spirit of the statute."
For reasons above stated, we hold that a disqualified regular judge is not under Section 29, Article VI, of the Constitution authorized to call a judge of another circuit to try a particular case.
Respondent cites Field v. Mark, 125 Mo. 502, 28 S.W. 1004; State ex rel. v. Fort, 178 Mo. 518, 77 S.W. 741; Barnes v. McMullins, 78 Mo. 260; State v. Able, 65 Mo. 357; In re Drainage District v. Richardson, 227 Mo. 252, 126 S.W. 1021; State ex rel. v. Serum Co., 272 S.W. 99; State ex rel. v. Williams,136 Mo. App. 330, 117 S.W. 618; State ex rel. v. Bacon, 107 Mo. 627, 18 S.W. 19.
In the Field case the plaintiff was the regular judge. The record disclosed an entry as follows:
"Now at this day the Honorable Richard Field, regular judge of this court being a party to this action, by agreement of parties, the Honorable Charles W. Sloan, Judge of the Seventh Judicial Circuit, is selected to try this cause."
Judge Sloan tried the case, and no objection was made by defendant until the motion in arrest. He then contended that the selection of Judge Sloan was unlawful for the reason that under the statutes an election of an attorney to try the case was essential. We held that the regular judge was unable to hold that part of the term occupied by the trial of the case in which he was disqualified, and for that reason the selection was lawful. In so holding we did not rule correctly. However, Judge Sloan was authorized to preside at the trial for two reasons: (1) the defendant made no objection; (2) Judge Sloan was not called as the judge of another circuit, but the parties agreed on him as a special judge, which was authorized by Section 2259, Revised Statutes 1889.
In the Fort case the respondent was the regular judge, and by order of record disqualified himself to preside in a proceeding to disbar the relator. He thereupon called another judge to try the *Page 1074 case. Thereafter he concluded that the defendant in a disbarment proceeding was not entitled to a change of venue and set aside the order. He then proceeded to try the case when our rule in prohibition prevented further proceedings. We held that the order of disqualification was valid. In effect we further held the regular judge was unable to hold that part of the term occupied by the trial of the case, and for that reason the order calling in another judge was lawful. In so holding, we also did not rule correctly.
The other cases cited do not touch the question under consideration. It may be stated that in the Barnes case we had under consideration a section of the statute providing for the election of a temporary judge. We did not have under consideration any provision of the Constitution.
II. We next consider the other part of the section, which follows: "And in all such cases (sick, absent, or from any cause), or in any case (instance) where the judge cannot preside, the General Assembly shall make suchElection additional provision for holding court as may be foundof Judge. necessary."
The General Assembly obeyed this mandate by providing that whenever the judge is unable to hold a term or part term and fails to procure another judge, a member of the bar may be elected to serve as judge. [Sec. 1943, R.S. 1929.]
The mandate was further obeyed, in case "the judge cannotpreside," by providing for a change of venue, or, in lieu thereof, the selection of a special judge by the parties, or the election of a special judge in the manner provided by law, by consent of the parties (Secs. 908, 1943 to 1950, R.S. 1929); and by authorizing a disqualified judge in a criminal case to call another judge (Sec. 3651, R.S. 1929).
It should be mentioned that a judge called to hold a term or part of term because of sickness or absence of the regular judge may be confronted with a case in which the regular judge is disqualified. Absent objection, he may try the case. On objection, a question would be presented which does not appear in this record for determination. The rulings and statements in Field v. Mark, 125 Mo. 502, 28 S.W. 1004; State ex rel. v. Fort,178 Mo. 518, 77 S.W. 741, and other cases in conflict with the views herein are disapproved. Those cases are to that extent overruled. As stated, the law-makers have authorized a disqualified judge in a criminal case to call another judge. They have not done so in a civil case.
The provisional rule should be made absolute. It is so ordered.