121 Ky. 694 | Ky. Ct. App. | 1905
Opinion by
Sustaining motion.
Article 7, chapter. 28, of the General Statutes, provided that, if the regular circuit judge could not properly preside in an action, the parties might by agreement select an attorney to hold the conrt for the occasion, and on their failue to agree upon an attorney-one should he selected by the bar to hold the court for the occasion. By an amendment it was provided that, the judge so elected should preside in all cases called during the term in which the regular judge could not
In the case before us W. I. Clarke was commissioned by the Governor in August, 1903, as special judge to try the case of J. C. Dupoyster v. Ft. Jefferson Improvement Company, in the Ballard Circuit Court; the regular judge being disqualified to sit in the case. His powers were not confined to the August term of the Ballard Circuit Court, but continue until the case is tried; and, when a judgment is entered, he may by proper orders enforce the judgment just as the regular circuit judge may do. Such orders as the regular circuit judge may make in vacation, he may make. Such orders as a regular circuit judge can not make in vacation, he can not make in vacation without calling a special term. If steps are necessary in vaca.tion, which the statute has not authorized the judge to take except in term time, a special term of the court may be called before action is taken; and, in calling a special term, the special judge must proceed precisely as the regular judge would proceed under the statute. The special judge here has made a rule upon the petitioner in vacation to answer at the next regular term and show cause why he shall not be punished
The only question on this application is whether the circuit judge had jurisdiction.. The propriety of his order in appointing the receiver or directing him to take charge of the property can not be inquired into now. This matter may be reached by an appeal from the order. We will add, however, that the court may from time to time give the receiver such directions as will prevent a sacrifice of the rights of the parties. As we understand the record, only the timber cut from the two tracts of land allotted to R. S. and Joseph Dupoyster, is in controversy, and some of this timber has been hauled to a sawmill. The timber that has been cut and hauled to the sawmill should not be allowed to waste, and the receiver should be directed so far as it may properly be done, to carry out contracts made for the sale of the timber, if beneficial to the parties, and to hold the proceeds subject to the order of the court. The litigation has been very prolonged and as speedily as possible it should be brought to a close, when the rights of the parties have been finally defined.