Missouri Pacific Railway Co. v. Preston

Citations

• 63 Kan. 819
• 66 P. 1050
• 1901 Kan. LEXIS 234

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Judge pro Tem. — Held aDe Facto Judicial Officer — Attach upon Review. The regular judge of the twenty-first judicial district was disqualified to sit in a cause pending before him, and the judge of the twelfth judicial district was called upon to try the same. He appeared, and was duly elected a judge pro tem. by the bar, and presided at the trial, with the acquiescence of the officers of the court and the parties to the action. The constitution provides that district judges shall not hold any other office of profit or trust under the authority of the state. Held, that the judge pro tem., so called and chosen, was a de faeto judicial officer, and his authority cannot be questioned in this court in a proceeding in error brought to reverse the judgment rendered by him in the cause which he was selected to try.</p> <p>2. -Error Waived — Complainant Estopped. The regular district judge, having been of counsel in a cause, was disqualified to sit, and defendant moved for a change of venue for that reason. The motion was overruled, but the court called upon a judge of an adjoining district to try the cause, and he was chosen and acted as judge pro tem., as stated in the preceding paragraph. Such judge pro tem. granted a continuance of the cause, the parties to the action consenting that it might be tried by him at the term to which the same was adjourned, and no objection was made to his acting as such judge. Held, that if any error was committed in overruling the motion for a change of venue it was waived by the party complaining here.</p> <p>3. - Oath of Office — Presumption from Record. A de facto district judge took and subscribed an oath that he would faithfully perform the duties of judge pro tem. in the case which he was selected to try at the regular May term of the court. The cause was continued to the October term, and the record is silent as to whether the judge took another oath of office. Held, that his power to proceed wit