Hunter's Adm'r v. Ferguson's Adm'r

13 Kan. 462

• Court: Supreme Court of Kansas
• Decided: July 15, 1874
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

This was an action founded upon a supposed judgment claimed to have been rendered by the circuit court of Barbour county, Alabama. The defendant in error (defendant below,) denies the validity of said judgment. The court below held it to be void; and the only question now presented to us is, whether it is void or not. The only ground upon which it is claimed to be void is as follows: It is claimed that the judgment was not rendered by the regular judge of the circuit court of said county, nor by any other person authorized to render judgment in that court. The journal entry of said judgment reads as follows:

{Title.) “Judgment, May 22d, 1867.

. “The presiding judge being incompetent to try this cause, and the parties failing to agree upon any one to preside in his place, John Gill Shorter was selected by the clerk to try the cause: And thereupon came the plaintiff by attorney, and the defendants being called came not, but made default. It is therefore considered by the court that the plaintiff recover of the defendants the sum of $1,910 for his damages, and also the costs in this behalf expended, for which let execution issue.”

Section 758 (640) of the Revised Code of Alabama reads as follows:

“When any judge of the circuit court is incompetent to try any case standing for trial, by reason of relationship to parties, or of having been engaged as counsel in the cause, or for any other reason, the parties to the suit must, when the same is reached for trial, nominate some attorney present in the court who must preside as judge for the trial of such cause during that term; and if the parties fail promptly to make such selection, the clerk of the court must nominate the attorney who shall preside over and try the cause at that term.”

It was admitted in the court below that said section was in full force and operation in Alabama at the time of the rendering of said judgment, and since, hitherto. It is claimed that said judgment is void for- the following reasons: First, the record thereof shows upon its face that the judgment was not rendered by the regular judge of said circuit court; second, it fails to show any specific disqualification on the part of said regular judge; third, and it fails to show that John Gill Shorter was an attorney present in court. Now said § 758 (640) of the Alabama Code is a sufficient answer to the first objection, for under that section it was not necessary that the regular judge should try said cause; hence we need to consider only the second and third objections, and we shall consider both of these together.

The circuit court of Alabama is a court of record with general original jurisdiction. This is shown by § 5, article 6 of the constitution of Alabama, (read in evidence in the court below,) by the record of the proceedings of the said circuit court, and by the certificates of the clerk and judge of said court who authenticated said record. The said circuit court had jurisdiction as a circuit court of the subject-matter of the action in which said judgment was rendered, It had jurisdiction of both of the defendants in that action by personal service of the summons upon each of them; and the whole of the record of all the proceedings in that action was introduced in evidence in the court below in this action. Hence all presumptions from silence or absence on the part of the record of said judgment should be construed in favor of the regularity and validity of the proceedings of the said circuit court, and not against them. (Galpin v. Page, 18 Wallace, 350.) It is a rule of universal application, that whenever a record of a court of general or superior jurisdiction is merely silent upon any particular matter, it will be presumed, notwithstanding the silence, that whatever ought to have been done was not only done but that it was rightly done. (Hahn v. Kelly, 34 Cal., 392.) This is the universal doctrine of the courts. Hence we think it ought to be presumed in accordance with the express declaration of the record of said judgment that the presiding judge of said court was incompetent to try said cause, although the record does not disclose the facts which rendered him incompetent; and we think it ought to be presumed that John Gill Shorter was an attorney present in court, although the record does not show that he was an attorney. The Alabama decisions referred to by defendant in error as applicable to this point have really no application whatever. They amount simply to this: whenever some special matter not coming within the ordinary jurisdiction of the circuit court, but belonging of right to some other court possessing only special and limited jurisdiction, is conferred upon the circuit court, to be by it heard and determined because of some disqualification on the part of the judge of the court of special and limited jurisdiction, the circuit court will for such special matter become merely a court of special and limited jurisdiction, just like the court to which such special matter rightfully belongs; and therefore every fact necessary to give such circuit court jurisdiction of such special matter must affirmatively appear upon the face of the record of the proceedings of such circuit court, just as it should appear upon the face of the record, of the proceedings of such court of special and limited jurisdiction, or such proceedings will be held to be void for the want of jurisdiction. That is,, the record of the court of general and superior jurisdiction must for this special matter be just as full with regard to> jurisdictional facts as the record of the court of special and limited jurisdiction. The record of the two courts for the special matter must be alike. In the present case however the subject-matter of the action in which said judgment was rendered does not belong to any court of special and limited jurisdiction. No court of special and limited jurisdiction could adjudicate upon it. But it belongs rightfully to the circuit court, and to no other court. The authority to hear and determine the subject-matter of said action is not a special authority conferred upon the circuit court, but it comes within its general and ordinary jurisdiction. It is not determined by some special statutory mode of procedure established for some court of special and limited jurisdiction; but i't is determined by the ordinary mode of procedure established for the circuit court. The case is tried just as any other case is tried in the circuit court, except that it is tried before a special judge, or judge pro tem. The record is made up in the same manner;, the proceedings are under the control and within the custody of the same officers, an'd the record of the proceedings are authenticated in the same manner. The court, although temporarily presided over by a special or pro tem. judge, is still. essentially the circuit court. It is not a court exercising merely a special and limited jurisdiction, but it is a court in the exercise of a general and superior jurisdiction, although presided over temporarily by a special judge; and therefore all the proceedings of said court should be examined and construed in the same manner as the proceedings of the circuit court are usually examined and construed. If otherwise, however —if all presumptions from silence on the part of the record are to be construed against the regularity and validity of the proceedings of the circuit court in such cases, then all such presumptions are not only to be drawn against the record of a court of general and superior jurisdiction, but they are also to be drawn against the intelligence, the care, and diligence, or the good faith of the regular officers of that court. It must be presumed against the officers, the judge, the clerk, and the sheriff, that they allowed a usurper to intrude into the judge’s office, to take possession of all the paraphernalia of the court, and to preside over its deliberations. Such presumptions should not be allowed. On the contrary, we think all presumptions should be in favor of the regularity and validity of the proceedings, and in favor of the intelligence, diligence and good faith of all the officers. We would refer to the following authorities as applicable to this point: State v. Carroll, 38 Conn., 449; 12 Am. Law Reg., N.S., 105; Feaster v. Woodfill, 23 Ind., 493, 497; Starry v. Winning, 7 Ind., 311, 314. In the case of Horton v. Pool, (40 Ala., 629, 632,) Judge Byrd of the supreme court of Alabama in delivering the opinion-of the court says: “The record should have shown affirmatively that the -person chosen to preside on the trial of the cause in the court below was an attorney of the court. (Code, § 640.) But without determining whether the record so shows, we are satisfied that there is no error shown by the bill of exceptions of which the appellant can legally complain.” This is all there is said upon the subject in his decision. The supreme court of Alabama by this decision substantially says, that although the record may be silent as to whether a special judge trying the cause is an attorney or not, yet, that even where the record is attacked directly, on an appeal, no error in the record is affirmatively shown of which the party attacking the record can complain. What would the court have said if the record had been attacked collaterally, as in the case now before us? It is supposed that the court would have said that the judgment was void. The court in that case affirmed the judgment of the court below, although the record was silent as to whether the special judge trying the cause was an attorney or not. And whoever heard of an appellate court affirming a void' judgment ? Whoever heard of an appellate court making a void judgment valid by affirming the same? Even on appeal the appellate court will not examine to see whether the judge trying the cause was legally the judge, unless the question was raised in the trial court. (State v. Anone, 2 Mott & McCord, (S. C.) 27; Feaster v. Woodfill, 23 Ind., 493.) A fortiori, a court will not examine such a question when the judgment is attacked collaterally.

But for the purposes of this case, suppose that the regular judge of the said circuit court of Alabama was entirely competent in every respect to try said cause, and suppose that John Gill Shorter was not an attorney present in court, then is the judgment void? Is it a nullity, when attacked collaterally, as in this case? We think not. The laws of Alabama, as admitted by the parties, provide for such an officer as a special judge pro tem. John Gill Shorter was regularly •selected and regularly installed as such officer for the trial of said cause. He took possession and control of the office for that purpose. He was duly recognized by all the officers of the court, the parties present in court, and others, as such officer. A record of his proceeding was regularly kept and preserved as in other cases, and such record was at the time it was made and still is recognized as a part of the records of said court. And the present judge and clerk of said court duly authenticate the very transcript of said record which was offered in evidence in this case, which was held to be void by the court below. John Gill Shorter was in fact beyond all doubt a special judge de facto of said court. And as such judge- de facto we do not think his proceedings can be attacked in the collateral manner in which they are now attempted to be attacked. They must be held valid and binding until attacked by some direct proceeding instituted for the purpose of attacking them. This doctrine we think is universally recognized and maintained. State v. Carroll, 38 Conn., 449; State v. Carroll, 12 Am. Law Eeg., N.S., 105; Feaster v. Woodfill, 23 Ind., 493, 497; Case v. The State, 5 Ind., 1; Starry v. Winning, 7 Ind., 311, 314; Jones v. The State, 11 Ind., 357; Taylor v. Shrine, 3 Brevord, (S. C.) 516; State v. Anone, 2 Nott & McCord, (S. C.) 27; In re Boyle, 9 Wis., 264; State v. Bloom, 17 Wis., 521; State v. Douglas, 50 Mo., 593; People v. Bangs, 24 Ill., 184; Clark v. Commonwealth, 29 Penn. St., 129; Ex parte Strong, 21 Ohio St., 610; Pepin v. Lackenmeyer, 45 N. Y., 27, 32; People v. White, 24 Wend., 520; State v. Alling, 12 Ohio, 16.

We have considered said § 758 (640) of the Alabama Code as valid and operative, because the parties to this suit agreed that it was, and nothing was introduced in evidence which tended to show that it was not valid and operative. It is in fact however unconstitutional and void, and the supreme court of Alabama has recently held it to be unconstitutional and void. {Ex parte James M. Amos, decided by the supreme court of Alabama July 30th, 1874.) We cannot take judicial notice of the constitution or laws or judicial decisions of Alabama, or of any other state. They must be proved by the introduction of evidence. (Gen. Stat., 700, § 370; Porter v. Wells, 6 Kas., 455; 1 Greenl. Ev., § 489; 2 Phil. Ev., (5 Am. ed., with Co wen & Hill’s and Edwards’ Notes,) original page 428, note 1.) It is true, for the purpose of construing our own laws, or of determining what our own laws are, we take judicial notice of everything that can in any manner aid us in such construction or determination, for we are bound to know what our own laws are without any proof thereof. And as we are bound to take judicial notice of what our own laws are, we are bound to take judicial notice of everything that will in any manner aid us in determining what our own laws are. For this purpose, and so .far as they are applicable, we may take judicial notice of the existence and history of the laws of every country and of every age. We may indeed take judicial notice of everything that can be known or understood of every law that has ever been passed, of every decision that has ever been promulgated, of every transaction that has ever occurred, of every event that has ever transpired, and of every fact that has ever existed. But except for the purpose of construing our own laws and of determining what they are, we can know but very little except through the medium of evidence. Except for that purpose we can know the laws of other states only as they are proved to us like other facts. Hence we cannot take judicial notice (against the agreement of the parties) that said § 758 (640) of the Alabama Code is unconstitutional and void. We have however examined the constitution of Alabama, and we agree with the supreme court of that state, that said § 758 (640) is unconstitutional and void so far as it attempts to authorize the selection of a special judge of the circuit court.

The judgment of the court below must be reversed, and cause remanded for further proceedings.

All the Justices concurring.