Prohibition. Honorable A.G. Knight, Judge of the Circuit Court of Mercer County, was disqualified in certain cases pending in that court. He attempted to call in Honorable Paul D. Higbee, Judge of the First Judicial Circuit to try the cases in which he was disqualified. Relators seek to prohibit Judge Higbee from assuming jurisdiction of and trying the case of Fleming v. Dunlap et al. This prohibition proceeding originated in Division One of this court. The division opinion inadvertently makes an inaccurate statement of the order calling in Judge Higbee. On account of this inaccurate statement of the order and on account of my construction of some cases relied upon by respondent, I have decided to express my views in a separate concurring opinion. Judge Knight's order calling in Judge Higbee was made at the April term, 1929, in the case of M.M. Mudgett v. W.D. Alley, Administrator of the estate of F.H. Mudgett, deceased. The order reads as follows:
"On this 1st day of July, 1929, the Hon. Judge of this court deeming himself to be disqualified to try this cause by having been counsel in a case in which similar issues are involved as in this cause hereby disqualified to act as Judge in this cause and therefore calls a Judge of another Circuit, namely, Paul D. Higbee, Judge of the 1st Judicial Circuit is called to be present and try said cause and other causes wherein this court is disqualified and this court being unable to hold a part of the September, 1929, term the aforesaid Judge Paul D. Higbee is therefore called to take charge of and preside as Judge for that part of said term."
While the closing part of this order recites that Judge Knight was unable to hold a part of the September (1929) Term, and therefore called Judge Higbee to preside as judge for that part of said term, no dates are given and the order does not designate what part of the September Term Judge Knight was unable to hold. Other parts of the order state the purposes for which Judge Higbee was called. It is recited that Judge Knight is disqualified in the case of Mudgett v. Alley and therefore calls Judge Higbee to be present and try that case and other cases in which Judge Knight is disqualified. Viewing the order as a whole it clearly appears that Judge Higbee was not called to hold a part of a term of court, but was called to try specific cases in which Judge Knight was disqualified.
Thereafter on September 9, 1929, and during the regular September Term of the Circuit Court of Mercer County, pursuant to Judge *Page 1076 Knight's call, Judge Higbee appeared in that court, took the bench and called the case of Fleming v. Dunlap et al., for trial. Plaintiff's counsel did not answer and no further proceedings were had at that time.
Thereafter on November 1, 1929, and during the regular September 1929 Term of said court, Judge Knight made an order in the case of Fleming v. Dunlap in which he reviewed the order he had theretofore made at the April Term in the case of Mudgett v. Alley, recited that Judge Higbee was doubtful as to his authority to try Fleming v. Dunlap under the former order, then entered his disqualifications in Fleming v. Dunlap and specifically called Judge Higbee to try that particular case and adjourned court to November 28, 1929. On November 28, 1929, pursuant to this latter call, Judge Higbee appeared in said court, made an order continuing said cause to the December Term, 1929, of said court, and ordered same docketed for trial on December 16, 1929. Further steps in the case were halted by our rule in prohibition.
As I read this record, the question presented is whether or not the judge of one circuit who is disqualified in a case pending in his court is authorized to call in the judge of another circuit to try that particular case. It is true that the first order made called Judge Higbee to try Mudgett v. Alley and other cases in which Judge Knight was disqualified, while the second order called him to try the specific case of Fleming v. Dunlap et al., but as I view it, the number of cases specified in the call cuts no figure. If a judge is not authorized to call in the judge of another circuit to try one specific case, it must follow that he would not be authorized to call such judge to try any number of specific cases. The character of the order calling the judge and not the number of cases involved is the thing which determines the question.
A proper construction of the pertinent provisions of the Constitution will determine the question.
Relative to the question under consideration, Section 17 of Article VI of the Constitution of 1865 contained the following provision:
"If there be a vacancy in the office of judge of any circuit, or if he be sick, absent, or from any cause unable to hold any term of court of any county in his circuit, such term of court may be held by the judge of any other circuit; at the request of the judge of any circuit any term of court in his circuit may be held by the judge of any other circuit."
The authority of one judge to call in another judge to try a particular case under this constitutional provision was before this court in Gale v. Michie, 47 Mo. 326. In that case the judge of the Gasconade Circuit Court was personally interested in a cause pending in his court. He called in the judge of a neighboring circuit to try *Page 1077 that particular cause. In determining the propriety of such action, we said:
"In this case both the judges evidently construed the authority given a judge of another circuit to hold one of the terms of the Gasconade Circuit Court, at the request of its judge, as also giving authority to sit in a particular cause at his request, the term being held by himself. But no such authority is contained in the section, either directly or by implication. The judge of a circuit may procure another judge to hold a particular term of court, giving up to him the whole business of the term; but he is not authorized, in order to prevent a change of venue in a particular cause, or for any other reason, to call in a neighboring judge to try that cause."
After the decision in Gale v. Michie the Constitutional Convention of 1875 amended the section of the Constitution to which we have called attention, and the Constitution as amended now provides that the judge of one circuit may call in the judge of another circuit to hold a term or a part of a term of court. [Sec. 29, Art. VI.] The effect of respondent's contention is that the amendment providing that one judge may call in the judge of another circuit to hold part of a term of court authorizes the calling in of the judge of another circuit to try a particular case, on the theory that the time consumed in the trial of that particular case would necessarily be a part of the term. This contention is not justified by the amendment. Neither is it in line with what this court has said on the subject since the adoption of the amendment. In Lewis v. Curry, 74 Mo. 49, and State v. Shea, 95 Mo. 85, both decided since the amendment, we held that one circuit judge had no authority to call in the judge of another circuit to determine a particular cause. The opinion in the Shea case, after quoting approvingly from Gale v. Michie which construed the Constitution of 1865, expressly called attention to the change made in the constitutional provision in 1875, and to the statutes pursuant thereto, both providing that one circuit judge may call in the judge of another circuit to hold a term of court or part of a term, when from any cause he (the regular judge) is unable to hold same. After calling particular attention to these constitutional and statutory provisions, the opinion concludes that subject by holding that the judge of one circuit has no authority to call in the judge of another circuit to determine a particular cause.
Respondent relies upon State ex rel. v. Fort, 178 Mo. 518, 77 S.W. 741, and Field v. Mark, 125 Mo. 502, 28 S.W. 1004, in support of the contention that constitutional authority to a judge of one circuit to call in the judge of another circuit to hold part of a term of court, authorizes the calling in of a judge to try a particular case. The facts are the authority of one judge to call in the judge of another circuit to try a particular case was not an issue in either of *Page 1078 the cited cases. The facts in the Fort case show that Fort was judge of the Circuit Court of Butler County. There was a disbarment proceeding pending before him in that court. On February 13, 1901, he entered of record his disqualification in said cause and called in Judge Fox, judge of another circuit to try said cause. At the next succeeding term of said court, Judge Fort changed his mind, attempted to set aside the order made at a former term in which he disqualified himself and called Judge Fox, and to try the case himself. Relator sought prohibition, not against Judge Fox who was called in, but against Judge Fort himself on the ground that when he entered his disqualification in the cause on February 13, 1901, and that order became final with the ending of that term, he lost jurisdiction of the cause and had no authority at a subsequent term to set aside the disqualification order and assume jurisdiction of the cause. In other words, the question at issue was not whether Judge Fort had authority to call in another judge to try said cause, but whether or not he himself could assume jurisdiction of the cause at a subsequent term after having disqualified himself by order entered of record at a former term.
Field v. Mark, above cited, originated in the Circuit Court of Lafayette County. Judge Field, the regular judge of that court, was plaintiff in the case and therefore incompetent to sit. The record shows that the parties selected Judge Sloan, Judge of the Seventh Judicial Circuit, to try said cause. The statute in force at that time provided that where the judge was interested the parties might agree on a special judge for the trial of the case. [Sec. 2259, R.S. 1889.] It thus appears that Judge Field did not call in Judge Sloan, but the parties to the suit selected Judge Sloan to try the case, which, under the statute, they had a legal right to do. As Judge Field did not attempt to call in another judge to try the case, whether or not he had authority to do so was not an issue in the case. It is true that in course of the opinion in both the Fort and Field cases, it is said that where a judge is disqualified in a cause pending in his court, he is authorized to call in the judge of another circuit to try said cause, but that question was not in either case and neither case was determined on that issue. It necessarily follows that what these cases say on that subject is obiter dicta and therefore not an authoritative determination of the question. It has been said that: "It is a maxim not to be disregarded, that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit where the very point is presented for decision." Obiter dicta statements when supported by logic are persuasive, but they are not precedents. According to my view the obiter dicta statement of the *Page 1079 court in the Fort and Field cases to the effect that the judge of one circuit may call in the judge of another circuit to try a particular case, is unsound, therefore not persuasive and should not be followed.
The divisional opinion holds, and I think correctly so, that when a judge is called into another circuit to hold part of a term of court, he is not a special judge in any particular case, but is the acting judge of the court for holding the part of the term he was requested to hold. If a judge, when so called becomes the acting judge of the court, it must follow that he has jurisdiction and authority to try any case pending on the docket of that part of the term or transact any business connected with the court whether relating to pending cases or to new business arising during his encumbency as acting judge of the court. The words "term of court" or "part of term" do not have reference to the trial of any particular case or cases, but signify the space of time when the court holds a session. [7 Words and Phrases (3 Ser.) p. 436.] If the divisional opinion is correct, and I think it is, in holding that the calling of a judge to hold a part of a term of court, constitutes such judge, the acting judge of thecourt, any call which would not constitute such judge theacting judge of the court would not be a call to hold a part of a term of court When Judge Higbee was called to try the specific case of Fleming v. Dunlap, such call, if authorized, would not constitute him the acting judge of the court for all purposes, but would limit his jurisdiction to the specific case which he was called to try. The same thing may be said of the first call made by Judge Knight because the order made at that time called Judge Higbee to try particular cases in which Judge Knight was disqualified.
For the reasons stated, the constitutional provision authorizing the judge of one circuit to call in the judge of another circuit to hold part of a term of court, does not authorize the calling in of a judge to try a particular case. As there is no other constitutional or statutory provision authorizing such action, I concur in the principal opinion which makes the provisional rule absolute. Atwood, C.J., White, Gantt,Henwood and Ellison, JJ., concur.