Stanclift v. Swingle

Supreme Court of Oklahoma

Stanclift v. Swingle

1911 OK 439, 120 P. 252, 30 Okla. 544, 1911 Okla. LEXIS 499

CourtSupreme Court of Oklahoma

DecidedNovember 14, 1911

Docket1169

StatusPublished

This text of 1911 OK 439 (Stanclift v. Swingle) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stanclift v. Swingle, 1911 OK 439, 120 P. 252, 30 Okla. 544, 1911 Okla. LEXIS 499 (Okla. 1911).

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Opinion

Opinion by

SHARP, C.

(after stating the facts as above). Counsel for plaintiffs in error, in his petition in error and in the assignment of error contained in his brief, sets out numerous assignments of error, only one of which is necessary to consider: Was there any warrant in law for the election of a special district judge on April 9, 1908?

The latter part of section 9, art. 7, of the Oklahoma Constitution, reads:

“In the event any judge shall be disqualified for any reason from trying any case in his district, the parties to such case may agree upon a judge pro tempore to try the same, and if such parties cannot agree, at the request of either party a judge pro tempore may be elected by the members of the bar of the district present at such term. If no election for judge pro tempore shall *546 be had, the Chief Justice of the state shall designate some other district judge to try such case.”

Was this provision of the Constitution self-executing? In Cowart v. State, 4 Okla. Cr. 122, 111 Pac. 672, it was held in the negative, and this construction was followed by this court in Spade v. Morton et al., 28 Okla. 384, 114 Pac. 724, in which case, Hayes, J., speaking for the court, said:

“In Cowart v. State, 4 Okla. Cr. 122, 111 Pac. 672, the Criminal Court of Appeals of this state held the foregoing provision of the Constitution authorizing the election of judges pro tempore not to be self-executing. Without repeating the reasoning of the court upon which it reached such conclusion, it will suffice to say, we think, that both the conclusion reached and the reason given in support thereof are sound.”

Here, as in Cowart v. State, supra, the election of a special judge to try the case was opposed by counsel representing the defendants below, and, while the reasons given for the objections made,- and which are set out in extenso in the journal entry, do not include the fundamental objection of jurisdiction, at the same time, the reasons assigned affirmatively show a want of consent, even though in such case consent would confer jurisdiction, a question which we do not attempt to here determine. Having objected to the authority of the special judge to try the case, the subsequent participation in the trial constituted no. waiver of defendants’ rights. •

It will be observed that the selection of the special judge and the trial of the cause were had before the passage of the act of the Legislature of March 22, 1909 (article 6, ch. 24, Comp. Laws 1909), providing for the selection and appointment of special judges, or judges pro tempore, when the regular trial judge should be disqualified.

We conclude that the special judge was without authority of law to hear and determine said action; therefore the case should he reversed and remanded.

By the Court: It is so ordered.

All the Justices concur.

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Opinion by

SHARP, C.

(after stating the facts as above). Counsel for plaintiffs in error, in his petition in error and in the assignment of error contained in his brief, sets out numerous assignments of error, only one of which is necessary to consider: Was there any warrant in law for the election of a special district judge on April 9, 1908?

The latter part of section 9, art. 7, of the Oklahoma Constitution, reads:

“In the event any judge shall be disqualified for any reason from trying any case in his district, the parties to such case may agree upon a judge pro tempore to try the same, and if such parties cannot agree, at the request of either party a judge pro tempore may be elected by the members of the bar of the district present at such term. If no election for judge pro tempore shall *546 be had, the Chief Justice of the state shall designate some other district judge to try such case.”

Was this provision of the Constitution self-executing? In Cowart v. State, 4 Okla. Cr. 122, 111 Pac. 672, it was held in the negative, and this construction was followed by this court in Spade v. Morton et al., 28 Okla. 384, 114 Pac. 724, in which case, Hayes, J., speaking for the court, said:

“In Cowart v. State, 4 Okla. Cr. 122, 111 Pac. 672, the Criminal Court of Appeals of this state held the foregoing provision of the Constitution authorizing the election of judges pro tempore not to be self-executing. Without repeating the reasoning of the court upon which it reached such conclusion, it will suffice to say, we think, that both the conclusion reached and the reason given in support thereof are sound.”

Here, as in Cowart v. State, supra, the election of a special judge to try the case was opposed by counsel representing the defendants below, and, while the reasons given for the objections made,- and which are set out in extenso in the journal entry, do not include the fundamental objection of jurisdiction, at the same time, the reasons assigned affirmatively show a want of consent, even though in such case consent would confer jurisdiction, a question which we do not attempt to here determine. Having objected to the authority of the special judge to try the case, the subsequent participation in the trial constituted no. waiver of defendants’ rights. •

It will be observed that the selection of the special judge and the trial of the cause were had before the passage of the act of the Legislature of March 22, 1909 (article 6, ch. 24, Comp. Laws 1909), providing for the selection and appointment of special judges, or judges pro tempore, when the regular trial judge should be disqualified.

We conclude that the special judge was without authority of law to hear and determine said action; therefore the case should he reversed and remanded.

By the Court: It is so ordered.

All the Justices concur.

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1911 OK 439, 120 P. 252, 30 Okla. 544, 1911 Okla. LEXIS 499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stanclift-v-swingle-okla-1911.

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