Childers v. Little

29 S.W. 319, 96 Ky. 376, 1895 Ky. LEXIS 108

• Court: Court of Appeals of Kentucky
• Decided: January 15, 1895
• Status: Published

Opinion

JUDGE GUEEY

delivered the opinion of the court.

Some time prior to February, 1888, Marion Childers, instituted suit in the Breathitt Court of Common Pleas against C. J. Little, for the recovery of three Breathitt county bonds of five hundred dollars each or their value, fifteen hundred dollars, and five hundred dollars damage for failure to return or account for the bonds. The defendant made defense and the cause was finally transferred to equity. Some time before the March term, 1891, of the Breathitt Court of Common Pleas, S. H. Patrick, defendant’s attorney, became judge of said court, and at said March term, 1891, J. P. Gillum was elected special judge of the' court, and at the September term, 1891, of the court,. W. W. McGuire was elected special judge to try such cases as the regular judge could not properly try, and at the September term, 1891, on the calling of this-, cause the defendant insisted that J. P. Gillum should try the case and render .judgment-, to which appellant objected, but the court permitted J. P. Gillum to render and enter upon the order-book of the court a judgment dismissing plaintiff’s petition, and adjudging defendant recover of plaintiff his cost, to all of which plaintiff objected and excepted and prayed an appeal to the Court of Appeals, which was granted.

Appellant insists that the case could not properly be tried by J. P. Gillum at the September term. The General Statutes, chapter 28, article 7, and the act, amending same, approved April 17, 1882, provide for the election of a special judge at any term of ■court when the regular judge is absent, or when he can not properly preside in one or more cases.

It appears that McG-uire was the special judge at September term, 1891, and it does not appear that J. P. Grillum had been elected or agreed upon as special judge at that term.

We are, therefore, of opinion that it was error to .allow J. P. Grillum to render or have entered any judgment in this action.

The judgment appealed from is reversed, and cause remanded for further proceedings not inconsistent with this opinion. All other questions involved in the cause are left to the further adjudication of the Breathitt 'Circuit Court.