106 P. 844 | Okla. | 1910
On December 24, 1904, the Okeene Hardware Implement Company, a corporation, defendant in error, sued I. H. Lookabaugh, plaintiff in error, in the probate court of Blaine county, upon a written guaranty, signed by himself and others, for $702.45. After motion to make more definite and certain, and demurrer filed and overruled, defendant filed answer and cross-petition, to which there was a reply, in effect, a general denial, and a trial to the court, which resulted in judgment for plaintiff and against defendant for $788.48, with interest and costs, from which he appealed to the district court. There defendant renewed said motion and demurrer, which were overruled, and exception saved, and proceeded to trial to the court, and on October 26, 1906, at the close of plaintiff's testimony, demurred thereto, which at the close of all the testimony the court took under advisement, and on December 21, 1906, overruled and rendered judgment in favor of plaintiff and against defendant for $817.70 with interest and costs. After motion for a new trial, filed and overruled, defendant brings the case here for review.
His first contention is that said judgment is coram nonjudice. On this point the record discloses that on June 12, 1906, the Supreme Court of Oklahoma Territory by proper order fixed terms of the district court to begin in Blaine county, at Watonga, on Tuesday, October 2, 1906, and in Garfield county, at Enid, on Tuesday, November 20, 1906, and later assigned Associate Justice Burwell, judge of the district court, to preside in all cases in said courts, beginning on the latter date, that might come before him during the absence therefrom of Hon. M. C. Garber, the regular presiding judge. Later a similar order was made directing him to preside in the district court of Garfield county, *476 beginning December 4, 1906, and later a similar order directing him to again preside in said court in Garfield county, beginning December 17, 1906. The record fails to disclose that Hon. B. F. Burwell presided at any time during the term of court in Blaine county, beginning October 2, 1906, but shows that the same was held by Hon. M. C. Garber, the regular presiding judge of that (the Fifth) district, who tried this cause October 26, 1906, and, before judgment, on the next day adjourned said court until November 19, 1906; that on said day the sheriff, in the absence of said presiding judge, adjourned said court until November 20, 1906; that on said day, pursuant to the aforesaid order of the Supreme Court, the district court of Garfield county convened, Hon. B. F. Burwell presiding, at which time it adjourned until next day, when it reconvened and continued in session from day to day, the same judge presiding until December 20, 1906, when it adjourned until December 26, 1906; that pending said adjournment, to wit, on December 21, 1906, the same being the "twenty-fourth judicial day" of the "October term, 1906," of the district court of Blaine county, Hon. M. C. Garber, the regular presiding judge, without order of the Supreme Court so to do, opened said court, and in the absence of both defendant and his counsel rendered and entered the judgment complained of.
Defendant contends that said judge had no right to hold said court there on that day, because he says the term had expired by operation of law on November 19, 1906. The point is well taken. On that day said court failed to convene, and therefore by operation of law adjourned without fixing in the order of adjournment any time to reconvene. The orders of October 27 and November 19, 1906, read:
"Adjournment. And thereupon court adjourns until 9 o'clock a.m. November 19, 1906. * * *
"Court convened this 19th day of November, 1906, at 3 o'clock p.m., pursuant to adjournment.
"Present: V. M. Whiting, Clerk; George A. McArthur, Sheriff; A. J. Lowary, County Attorney; F. E. Hillis, Court Crier. *477
"Public proclamation of the opening of court having been announced, proceedings were had as follows:
"The sheriff, in the absence of the sole presiding judge, adjourned court until tomorrow at 9 o'clock a.m. November 20, 1906. * * *
"Adjournment. And thereupon court adjourns until 9 o'clock a.m. November 20, 1906."
From which we infer that the regular judge was present and convened court on October 27, 1906, and adjourned the same until November 19, 1906, but on that day was neither present to convene nor adjourn court, at which time the sheriff alone undertook to both convene and adjourn until the next day, November 20, 1906, on which day nothing was done or attempted.
We are of opinion that, as no day was set by the court on November 19 for reconvening (the action of the sheriff being a nullity — Railway Co. v. Hand,
In Re Dossett,
"After the court has once regularly convened on the day fixed by order of the Supreme Court, it can expire only by adjournment sine die or by operation of law, and, unless adjourned sine die, will not so expire by operation of law until the first day of the regular term in the same or another county. * * *"
In re Patswald,
In re Millington,
It follows that, the court having failed to fix in the order of adjournment a time for reconvening, the term expired by operation of law by the commencement of the term in Garfield county; that said court was precluded from again convening until the time fixed by law for its next regular session; and that the judgment complained of, being rendered and entered in vacation, is coram non judice and void. Irwin v. Irwin,
It is unnecessary to discuss other questions raised in the briefs.
Following Earls v. Earls,
All the Justices concur. *479