Berry Bros. v. Leslie

131 Mo. App. 236 | Mo. Ct. App. | 1908

JOHNSON, J.

Plaintiffs sued defendant on an account before a justice of the peace and obtained judgment. Defendant appealed to the circuit court of Jackson county where the cause was tried at the April term, 1906, before the Honorable F. F. Rozzelle, who had been elected as special judge to hold a part of that term on account of the illness of the Honorable William B. Teasdale, the- regular judge. A jury being waived by the parties the cause was submitted to the court, judgment was rendered in favor of plaintiffs and defendant appealed. The record discloses that on the 6th day of October, 1906, and during the said April term, an order was made allowing the appeal and granting defendant leave to file his bill of exceptions, “within ten days after the adjournment of said April term, 1906,” and further, that the bill was signed and filed on the 16th day of October, which was after the close of the April term but within the time stated in the order. It was signed by Judge Rozzelle but not by Judge Teasdale. All of the errors assigned relate to matters occurring at the trial and as the appeal was brought here by the short form, it was incumbent on defendant to show affirmatively in his abstract of record that his bill of exceptions was properly taken and filed. [Quarry Co. v. Construction Co., 72 Mo. App. 478; Hohstadt v. Daggs, 49 Mo. App. 157.] For aught appearing in the abstract before us, we must assume that the period for which the special judge was elected' ended with the April term and that he was not re-elected to serve during the October term, nor any part thereof. The question to be decided is whether a bill of exceptions signed by the special judge who tried the cause, after the expiration of the period for Avhich he was elected should be treated as properly authenticated.

It has been held that where a special judge is elected to preside at the trial of a particular case, his authority over that case continues until its final disposition in the circuit court and if time for filing a bill of exceptions be extended beyond the term at which the case is tried, the special judge- may authenticate the bill. As to that particular case, he is the judge of the court for all purposes and whenever it becomes necessary to make an order in the case, he is empowered to hold court for that purpose. [Naffzieger v. Reed, 98 Mo. 87; Holliday v. Mansker, 44 Mo. App. 465; Rawlins v. Timons, 80 Mo. App. 84.]

But the rule is different where the special judge is elected to hold a term or part of a term of court for the transaction of all of the business that may properly come before the court during that period.' In such case, the special judge becomes the judge of the court for a specified term of office and. succeeds to all the powers and responsibilities of the regular judge. When his term ends, he goes out of office, ceases to be judge for any purpose, just as a regular judge becomes divested of all judicial powers and functions at the expiration of his term of office. [Ranney v. Packing Co., — Mo. App. —; Scott v. Joffee, 125 Mo. App. 573; State v. Sanders, 106 Mo. 188;. Martin v. Insurance Co., 124 Mo. App. 221.] Since Judge Rozzelle’s term of office expired with the April, 1906, term of court, it,follows that he had no authority to sign and order-filed a bill of exceptions after the close of that term. Under section 731, Revised Statutes 1899, that function should have been performed by his successor in office. The bill of exceptions does not come to us properly authenticated and as no error appears in the record proper, the judgment must be affirmed.

All concur.