Atchison, Topeka & Santa Fe Railroad v. Leeman

5 Kan. App. 804 | Kan. Ct. App. | 1897

Per Curiam.

On October 8, 1895, the jury in this case returned a verdict in favor of the defendant in error. Hon. A. J. Abbott was then the regular judge of the twenty-seventh judicial district which embraced Kearny County, and presided at the trial. In view of the fact that said county would, on October 15, 1895, become a part of the thirty-second judicial ■district, according to the provisions of chapter 106, laws of 1895, after which date the twenty-seventh district would cease to exist, it was then agreed by-counsel that the case should be continued for further proceedings until November 27 ; that court should adjourn until said date, and that Judge Abbott should sit in the case to its conclusion as judge pro tern, and do and perform all acts in said cause, including the settling and signing of the case-made, which he could do if the twenty-seventh district should not have been abolished, ‘ ‘ and all and singular the things that the regular judge of the district court could do and perform.” On November 27, the court convened pursuant to the adjournment which had been made according to the said agreement, and the case was concluded by-Judge Abbott, as judge pro tern. The time for making and serving a case-made by defendant was thereupon extended by the court until January 27, 1896. On the latter date Judge Abbott further extended the time for making and serving the case-made for thirty days from that date.

Defendant in error has moved to dismiss these proceedings, the principal ground of his motion being that a judge pro tern, has no power to extend the time for making and serving a case-made except while he is holding court. We think this motion must be sustained, in view of the construction of section 549 of the Code, given by our Supreme Court in Hulme v. Diffenbacher (53 Kan. 181).

The power to extend the time' for making and serving a case-made resides with the court when in session, whether presided over by the regular district judge or by a judge pro tern., and with the district judge who is in fact in possession of the office. While holding court the powers of the judge pro tern, are as ■ample as those of the regular judge when sitting as a court, but when the court has finally adjourned the judge pro tem'. is shorn of nearly all of his judicial powers. On January 27, 1896, Judge Abbott had no connection with the office of district judge; another person held that office and was exercising its functions. The latter alone possessed the power, under the statute, to make the order which Judge Abbott then attempted to make.

The case-made cannot therefore be considered as such by us.

We find, however, that it is certified as a transcript, and we shall not dismiss the proceedings, but will permit the plaintiff in error to treat the purported case-made as a transcript. Dodge v. Hamburg-Bremen Ins. Co., 4 Kan. App. 415. It is so ordered.