94 S.W.2d 703 | Ark. | 1936
Appellee recovered judgment in the Clark Circuit Court against the appellant for the sum of $30,000, and for the reversal of this judgment numerous errors are assigned and discussed in the briefs. One of these was that the court was not legally in session at the *784 time of the trial, and as we think this assignment is well taken other questions raised are moot.
The suit was filed July 6, 1935. The circuit court convened July 22, 1935, and remained in session until July 31, when there was an adjournment. As to the date to which the court adjourned the presiding judge made the following statement: "The petit jury was excused until the 4th day of November and the court was adjourned. The court ordered that the court would be adjourned until the 4th day of November. * * * The court has never made any order vacating the order which had previously been made adjourning the court until the 4th day of November."
The clerk of the court was also called as a witness. He produced the record of the proceedings of the court which he had made and entered as follows: Opening order made July 22; an order adjourning court until July 23; an order adjourning the court until July 29; an order adjourning court until July 30, and an order adjourning until July 31. An order was entered on the last-mentioned date adjourning court until 9 a.m., August 5, 1935. A session of the court was held on that date and proceedings had which were authorized only at a session of court. The clerk testified that he left the records of August 5 open and entered no adjourning order on that date, but that an adjourned day of court was held on August 21, but that, so far as he knew or as was shown by the records of the court, no adjourning order to August 21 was made. However, the record of the proceedings of August 21 recites that the court met on that date pursuant to adjournment, the regular judge of the court being present and presiding, when the proceedings there recited were had and done. He also testified that he entered no adjourning order at the close of the record of the proceedings on August 21, as he did not know when the judge would return, but that the judge did return on September 11, at which time he entered an order adjourning the court to the last-mentioned date. The record of the proceedings of September 11 recites that the court convened pursuant to adjournment *785 on that date, with the regular judge present and presiding, when certain judgments were entered in the proceedings of that day. A part of the proceedings entered as of September 11 was an order adjourning court until October 17. The clerk testified that this adjourning order entered in the proceedings of September 11 was not entered as of that date, as he did not know, at the time court adjourned on September 11, when the judge would return, but that he did return on October 17. He then entered an adjourning order as of September 11. The court record was introduced showing that court met on October 17 pursuant to adjournment, with the regular judge present and presiding. No adjourning order was entered in the proceedings of October 17.
The clerk further testified that he "had a little record book," which was the minutes book he kept on his desk while court was in session, but was not the regular permanent record book of the proceedings of the court, in which he noted all court proceedings as they occurred, and on August 5 he entered a notation in the minutes that the court adjourned until November 4. At the close of the proceedings on July 31 he entered in the court records an order adjourning court to November 4, but when the judge appeared and held court on August 5 he changed the adjourning order to show that the court had adjourned — not to November 4, but to August 5.
Upon this testimony of the clerk, and this statement by the presiding judge, the order showing an adjournment to August 5 was changed to read that the court had adjourned, on July 31, to November 4, whereupon, over the objections of the appellant, the trial proceeded to a verdict and the judgment here appealed from.
Sessions of circuit court are of three kinds under the practice in this State: (1) Regular sessions; (2) special or called sessions; (3) adjourned sessions. It is not contemplated that there should be any uncertainty as to when these sessions are to be held. It would be an intolerable condition if litigants, whose rights are to be adjudged, should remain or be in doubt as to when the court will convene before which they are required to appear. *786
All persons have notices of regular terms of court, for these meet at the time appointed and fixed by law. Special terms of court may be called pursuant to the provisions of 2111-2223, Crawford Moses' Digest. The statutes cited require the order of a court calling the session to be entered by the clerk on the records of the court, and it has been consistently held, since the early case of Dunn v. State,
There are also adjourned sessions, referred to in 2112, Crawford Moses' Digest, as special adjourned sessions. That section reads as follows: "Special adjourned sessions of any court may be held in continuation of the regular term, upon its being so ordered by the court or judge in term time, and entered by the clerk on the record of the court." This statute, brought forward from the Revised Statutes, chap. 43, 28, was given the following construction in the case of Davies v. State,
It was held in the case of Burks v. Cantley,
In the case of Roberts Schaeffer Co. v. Jones,
When the facts herein recited are taken into account, it cannot be said that there were no adjourned sessions of court intervening between July 31 and November 4. Now, valid sessions of the court might have been held on each of these intervening days, and then on November 4 also. It would have only been necessary to have adjourned the court during the sessions thereof from one day to the next, as the record shows was done, up to and until October 17, and to have adjourned from October 17 to November 4, provided there were no other courts appointed by law or other orders of court for those days. But there was no adjourning order from October 17 to November 4. Therefore the session beginning November 4 at which the judgment here involved was rendered, was unauthorized, and that judgment is void.
Judges do not have the power to hold sessions of court at their pleasure. If the session is not (a) a regular term or (b) a special or called session, then, to be valid as an adjourned session, it must be a continuation of a regular or special session held pursuant to an adjourning order made in term time of a regular or special session of court. Section 2112, Crawford Moses' Digest.
In the case of House v. McGehee,
The case of Southwest Power Co. v. Price,
It was there held that the defendant having been served with summons for more than twenty days before September 27, the adjourned day, it had not filed the petition to remove in the time required by the Federal Judicial Code. It was there said: "It can make no difference, so far as the power company is concerned, that the court was in session only one day, or the character *789 of business transacted, if any, or that it had no actual knowledge that it would meet in adjourned session on said date. It is sufficient that the court was in adjourned session on that day, and the petition and bond for removal were not filed by noon of that day. More than twenty days had expired after service on September 27, and we therefore hold that the petition and bond were filed out of time, and that the circuit court correctly so held."
There is involved here no question of removal, but the Southwest Power Company case, just cited, announces the rule which must be applied when it is raised. In that case an intervening adjourned day fixed the date with reference to which the petition and bond to remove had to be filed. So, here, August 5, being a day on which an adjourned session of court was actually held, could not be left out of account in determining whether a petition to remove had been filed in apt time.
We think the orderly and certain administration of justice require us to hold that the adjourned session convening November 4 was held without authority, and, if so, the judgment here appealed from is void, and must be reversed, and it will be so ordered. Cause remanded.