48 Ark. 227 | Ark. | 1886
On the 4th of August, 1885, in Desha circuit cour^> cause of J. M. Whitehill, plaintiff, against J. R. Sutler, defendant, was tried before the Hon. John A. Williams, circuit judge, and a jury, and a verdict and judgment were given for the defendant. On the 6th of the same month the plaintiff moved for a new trial. This motion had not been disposed of, when the court adjourned over to the 8th of December, following. On fhe day last mentioned, the circuit judge was not in attendance, being engaged in holding the Jefferson circuit court. On the 9th of December a special judge was elected, who adjourned the court over from time to time, until the 23d of January, 1886, when the regular judge appeared, set aside the judgment previously entered in the above entitled cause, and ordered another trial.
i. cikcuit Adjourn BUctioToi ^ulgesj tion. 1 1
At a subsequent term, the defendant in the action moved the court to strike the case off of the docket, upon a suggestion that the judgment had become final before the court undertook to set the same aside. This motion was denied. The defendant in that action now prays the writ of prohibition to prevent the circuit judge from taking further jurisdiction of the cause. And the question is, whether the Desha circuit court was legally in session on the 23d of January, 1886.
It is not the meeting of the judge and officers of a court at the county seat that constitutes a court, but that meeting must be at a time authorized by law. Brumley v. State, 20 Ark., 77; Osborn, ex parte, 24 ib., 479.
The terms of the circuit court are prescribed by statute. It is provided, however, that “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.” Mans/. Big., secs. 1476, 1481.
There is no such thing known to our laws as two circuit courts held in the same circuit at the same time, one presided over by the regular judge and the other by a special judge. Suitors are entitled to have their causes tried before the circuit judge, unless he is disqualified, or unable to preside from causes beyond his control.
It was lawful for the Desha circuit court to adjourn its sittings to a distant day. But when that day arrived, and he was detained by his judicial duties in another county of his circuit, the adjourned session necessarily failed. Eor there is no power to supply his place temporarily by a special election by the attorneys in attendance; his absence for this cause not being such an inability to continue to hold the court as is contemplated by section 21, of article 7, of the constitution of 1874.
~We are also inclined to think that if the circuit court of Jefferson county had not been in session, the adjourned session would have failed for want of a judge, the court not haying been organized on the day to which the adjournment wae had by the election of a special judge.
■ This was not a new term but a continuation of the old one. But. on this point it is not necessary to express any decided opinion.
2'bition“’ When is-
Prohibition is an extraordinary remedy and the writ will nofc’be granted unless the defendant has objected to the jurisdiction of the inferior court and his objection has been overruled. City of Little Rock, ex parte, 26 Ark., 52, and cases cited; Smith v. Whitney, 116 U. S., 167.
■ We regará the motion by the defendant to dismiss the cause for want of jurisdiction as satisfying this requirement. It was in fact all he could do. Let the writ go.