Smith v. Haworth

53 Mo. 88 | Mo. | 1873

Sherwood, Judge

delivered the opinion of the court.

This was an action brought in the Court of Common Pleas of Jasper county to foreclose a mortgage, and resulted in a judgment as prayed in the petition, and this case comes here on appeal of defendants, who, among other grounds, assign, as error in the action of the court below, the appointment of W. H. Phelps as Judge pro tem., to try the cause. This point was passed upon by this court at its last January term, in the case of Harper vs. Jacobs, et al., in which it was held (Judge Ewing delivering the opinion), that the act of the Legislature, approved February 1, 1870, authorizing such appointment, was clearly within the scope of legislative authority, as a necessary incident of the discretionary power conferred on the Legislature by the Constitution, to establish inferior tribunals from time to time; and, therefore, that the act in question was not obnoxious to the charge of unconstitutionality. Section 15, page 200, laws 1870, of the act referred to, provides, that when an application for a change of venue shall be made because of the prejudice, etc., of the judge of the court, that it shall be lawful for him to appoint, “ by an order of record, any duly licensed attorney-at-law of this State Judge pro tem. for the trial of the particular cause specified in said order.”

An examination of the transcript filed here fails to disclose that any such order was ever entered óf record. It is a very salutary rule, long sanctioned by reason, experience and authority, that these special laws, that give origin to new and unexpected departures from general rules, should be closely scrutinized, and the powers therein conferred strictly construed. (Schell vs. Leland, 45 Mo. 289.) Applying this rule here an easy and ready solution of the disposition to be made of this case is soon reached.

The entry of record in such a case constitutes at once both the authority of the special judge and the evidence of that authority, without which he is utterly powerless to act. It follows as an inevitable sequence from these premises, that the judgment must be reversed and the cause remanded.

The other Judges, except Judge Adams, absent, concur.