14 S.W.2d 1058 | Ky. Ct. App. | 1929
Reversing.
A.J. Asher and Chesney Asher Nuckols, the guardian of Willie Jean Hodges, sued A.J. Duff and others in ejectment. Duff answered, controverting the allegations of the petition, and by counterclaim asserted title to five separate tracts of land. The fifth tract was not fully described. Later Duff had this tract of land surveyed and offered to file an amended answer setting out the description. The regular judge of the Leslie circuit court was disqualified from sitting, and the case was tried before a special judge, who refused to permit the amendment to be filed, and rendered judgment against Duff for the land described therein.
On appeal to this court Duff procured a reversal of that judgment, with directions to permit the amended answer to be filed. Duff v. Hodges' Guardian,
As suggested above, for some reason not appearing, the regular judge of the Leslie circuit court was disqualified, and the Governor of the state designated Judge Redwine as special judge to hear and determine the case in the first instance. The appeal was taken from the judgment rendered by Judge Redwine but Judge Redwine did not return to Leslie county or again sit in the case, and no other special judge was designated for that purpose. And after the return of the case from the Court of Appeals it was heard and determined by the regular judge, who was disqualified in the first instance. The motion to vacate was based on the theory that, under the appointment and designation, Judge Redwine had exclusive authority to hear and finally determine the case; that for this reason the judgment entered by the regular judge was void, and, that being void no appeal lay; and therefore the judgment could only be attacked under section 763, Civil Code — hence the proceeding by motion. We cannot accept either proposition. The tenure of a special judge was considered in Kentucky Union Co. v. Bailey,
Wherefore judgment is reversed, cause remanded, with instructions to the lower court to set aside the order vacating the November, 1926, judgment, and for proceedings consistent with this opinion.