er v. McNaughton, 114 N. Y. 535, 21 N. E. [ was any mention made of the relation the de1022, 11 Am. St. Rep. 687; Neely v. State, fendant bore to Miness, the ostensible payee 60 Ark. 66, 28 S. W. 800, 27 L. R. A. 503, 46 of the note; nor was anything said as to the Am. St. Rep. 148; Whitney v. Wyman, 101 ownership of either it or the mortgage, the U. S. 392, 25 L. Ed. 1050; 2 Kent's Com. 630, plaintiff assuming that the defendant was 631; 31 Cyc. 1555; 1 Mechem on Agency (2d the owner and had caused them to be executEd.) 1169, 1179; Story on Agency, § 267. ed by Mrs. Hoppe to Miness, a fictitious perSection 5453 of the Revised Codes, embodies son, ostensibly a resident of New York City, in principle the same rule. It provides: to avoid the payment of taxes in Montana. While there is no direct evidence tending to establish this fact, there are circumstances which furnish some basis for an inference that it was the fact, or, to say the least, which leave a reasonable mind in doubt on the subject. This condition of the evidence required a submission of the issues to the jury; and, as its conclusion thereon was approved by the trial judge in denying the motion for a new trial, this court must accept it as final. "One who assumes to act as an agent is responsible to third persons as a principal for his acts in the course of his agency, in any of the following cases, and in no other: (1) When, with his consent, credit is given to him personally in a transaction. * Obviously, the assumption by one to act as agent for another must of necessity require this fact to be declared by him in appropriate terms, as well as the name of the principal for whom he is acting. Obviously, also, when the evidence of what was said and done at the time of the particular trans- A second contention is that the court erred action, in the light of the attendant circum-in refusing to direct the jury to return a verstances, is equivocal and furnishes the basis dict for the defendant and in submitting cerfor different inferences as to what the in- tain instructions requested by the plaintiff. tention of the parties was, the question We have already shown that the evidence whether defendant acted for himself is for called for a finding by the jury. The court determination by a jury. therefore properly refused to direct a verdict. The objection to the instructions submitted did not question their correctness in point of law, but merely questioned the propriety of submitting the case to the jury at all. Defendant's contention in this behalf is without merit. Finally, it is contended that the court erred in admitting and excluding evidence. Technically some of the rulings in this be half were erroneous. Some of the evidence admitted was immaterial; but it is not pointed out that it prejudiced the defendant, nor, by a careful examination of the entire record, have we been able to ascertain that it did. The evidence excluded was wholly immaterial and did not relate to any issue in the case. The rulings in this connection were correct. [3] The evidence embodied in the record here presents such a question. It would serve no useful purpose to set it forth and analyze it in detail. The following summary of it will be sufficient to exemplify this: The plaintiff and defendant both reside in Miles City, Custer county. At the time the services over which this controversy arose were rendered, Mr. Herrick, an attorney at law, was in the employ of the plaintiff. A question had arisen between defendant and Mrs. Hoppe as to whether defendant had not exacted and collected interest on the note at a rate in excess of that stipulated for therein (Laws 1913, p. 51), and had become liable to the forfeiture prescribed by the statute. Defendant sought the advice of Mr. Herrick in this connection, and also his services in the foreclosure of the mortgage, if this should become necessary. Mr. Herrick, aided by plaintiff, took up the question of interest and later advised defendant that there was nothing in the way of a foreclosure, but that this would not be necessary, as Mrs. Hoppe was willing to make a settlement of the matter. In fact, a settlement was pending at that time and later was effected either on the basis then proposed or upon a different basis. When Mr. Herrick and the Where a district judge presides at a trial in plaintiff were informed of the terms propos- another district upon an order of the judge of ed by the defendant and were requested to Const. art. 5, § 11, and Comp. St. 1910, § 912, the district wherein cause is pending, under put them in writing, they refused to act fur- he is at least a de facto judge, and where no ther for the defendant, because they became objection to his authority is made before or dursatisfied that the terms proposed by himing the trial, all objection to such authority is were not fair and just to Mrs. Hoppe. The evidence does not disclose how the settlement 2. APPEAL AND ERROR 185(3)-JUDGES ←→ was finally made. At no time during the several visits by defendant to plaintiff's office The judgment and order are affirmed. (25 Wyo. 436) HOGLAN v. GEDDES. (No. 890.) (Supreme Court of Wyoming. April 22, 1918.) 1. JUDGES 19-OBJECTIONS TO SUBSTITUTE JUDGE. waived. 19-OBJECTIONS TO SUBSTITUTE JUDGE. Such objection cannot be made for the first time on appeal or in the motion for new trial. 3. CONSTITUTIONAL LAW 31 CUTING PROVISIONS SELF-EXE- in the district court in Sheridan county. That SPECIAL OR SUBSTI- county is one of the counties of the Fourth Const. art. 5, § 11, providing that "the judges judicial district, but Judge E. C. Raymond, of the district courts may hold courts for each judge of the Seventh judicial district, presidother," is self-executing, and confers authority ed at the trial, ordered judgment on the veron the judge of one district to call in the judge dict, and heard and overruled defendant's of another district without reference to statute and independent of request or reason for substi- motion for a new trial, pursuant to an order of the judge of the Fourth district calling and assigning him to hear, try, and determine the case. tution. 4. JUDGES 15(1) SUBSTITUTE Judge GROUNDS "ANY CAUSE." Comp. St. 1910, § 912, providing that, "when from any cause" a district judge is unable to try a cause, he shall call upon a judge from another district to preside thereat, held to give a judge authority to call in another judge whenever he deems cause sufficient. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Any.] 5. JUDGES 18-AUTHORITY OF SUBSTITUTE JUDGES. An order, calling a district judge to try a case in another district, and giving as a reason that the regular judge thereof is otherwise occupied, held to confer authority upon judge so called upon, under Comp. St. 1910, § 912. providing that "when from any cause" a judge is unable to try a case, he may call in a judge from another district to preside thereat. 6. APPEAL AND ERROR 536-BILL OF EX CEPTIONS-MATTERS NOT IN RECord. Where no time had been granted within which to present a bill of exceptions, and the court so certifies when bill is presented to him for allowance, and in addition certifies as to contents of bill, but does not allow same, it cannot be considered as bill of exceptions; matters therein contained do not become a part of record. 7. APPEAL AND ERROR ~553(1) PROCEEDINGS NOT IN RECORD-BILL OF EXCEPTIONS. Where objection is made to authority of substitute judge because regular judge was trying a case at same time, facts in support of objection, on writ of error, must appear from rec ord of trial as shown by bill of exceptions, and statements in notice of motion and affidavits in support thereof are insufficient. 8. JUDGES 15(1) SUBSTITUTE JUDGE SEPARATE SESSIONS AT SAME TIME IN SAME DISTRICT. [1, 2] It is contended as the only ground relied on for a reversal that Judge Raymond was without authority to preside at the trial or to hear and determine the cause. The contention is based on two grounds: First, that the order aforesaid of the regular judge of the district stated an insufficient reason for calling in another district judge; second, that while the trial of this case was proceed. ing before Judge Raymond in the courtroom of the courthouse in Sheridan county Judge Parmelee, judge of said Fourth district, was holding court and engaged in the trial of another case in another room of the courthouse. The order of Judge Parmelee calling upon Judge Raymond to hear and determine the case recited as the reasons therefor that Judge Raymond was in the district at the time; that the judge of the Fourth district was otherwise occupied, "and it appearing that it would better suit the convenience of the parties and the court." The Constitution provides: "The judges of the district courts may hold courts for each other and shall do so when required by law." Article 5, § 11. It is provided by statute (section 912, Comp. Stat. 1910) as follows: hold courts for each other, when from any cause, "The judges of the several district courts shall any judge of a district court is unable to act or to hear, try or determine any cause, or to hold any term or portion of a term of any district court in his district; and in such event the judge so disqualified or unable to act shall call upon one of the other judges of the district court to hear, try and determine such cause, or to hold such term or portion of a term of court, and the said judge so called upon, shall try, hear or determine said cause, or hold such term or portion of a term, with all the jurisdiction, power and authority possessed by the judge of the Error to District Court, Sheridan County; district court of the district whereto he is called E. C. Raymond, Judge. Where a district judge presides at a trial in another district upon an order of regular judge thereof, the holding of court by the regular judge at the same time does not invalidate authority of the special judge, whatever effect it may have on the proceeding in which the regular judge is sitting. Action by Laura G. Geddes against M. C. Hoglan. Judgment for plaintiff, and motion for new trial overruled, and defendant brings error. Affirmed. F. Byrd, of Sheridan, for plaintiff in error. R. E. McNally, of Sheridan, for defendant in error. POTTER, C. J. This case is here on error. The plaintiff in error was defendant in the court below, and upon a jury trial of the cause there was a verdict against him, and a judgment thereon for $500 and costs. The proceeding in error is brought to reverse that judgment. The action was brought and tried to act as judge." Thus the Constitution expressly authorizes and declares it his duty to do so when rea district judge to hold court for another, quired by law. And the statute so requires when he is called upon by the judge of another district who, from any cause, is unable to act, or to hear, try, or determine any cause, or to hold any term or portion of a term. Being qualified, as the judge of one district, to hold court for another district judge in his district under conditions authorizing it, and having assumed authority and jurisdiction to preside at the trial of this cause upon an order of the judge of the district wherein the cause was pending, Judge For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Raymond was at least a de facto judge in the trial and determination of the cause. And any objection to his acting on the ground that he was without authority or jurisdiction would be waived unless seasonably made. That is the general rule as to special or substitute judges where there is authority by Constitution or statute for their selection. The rule is stated in 23 Cyc. at page 616, as follows: "Objections to the authority of a special or substitute judge may be waived by act or omission of the party, and ordinarily such objections are waived where they are not promptly made. The objection should be made at or before the trial, and cannot be made for the first time on appeal." And, in a note to the case of Tillman v. State, 58 Fla. 113, 50 South. 675, 138 Am. St. Rep. 100, 19 Ann. Cas. 91, on page 94, preceding the citation of a large number of cases in support of the rule, it is stated as follows: "The general rule is that an objection to the jurisdiction of a special or substitute de facto judge may be waived, either by consent of the parties, or by proceeding in the cause, before such judge, without making objection to his jurisdiction.' See, also, 15 R. C. L. 516; Whitesell v. Strickler, 167 Ind. 602, 78 N. E. 845, 119 Am. St. Rep. 524; State v. Van Wye, 136 Mo. 227, 37 S. W. 938, 58 Am. St. Rep. 627; Barden v. State, 98 Neb. 180, 152 N. W. 330; City of Oakland v. Hart, 129 Cal. 98, 61 Pac. 779; Lillie v. Trentman, 130 Ind. 16, 29 N. E. 405. [3] The record here does not show that any objection was made to the authority or jurisdiction of Judge Raymond when the order aforesaid was made, or at the trial, nor until the filing of the motion for a new trial, which was too late. And, further, the objection made by the motion for new trial by alleging therein that said judge was without authority, as will later appear, is not before us, for thority in the law for one district judge to hold court for another. The Constitution, as above shown, expressly provides that the judges of the district courts may hold courts for each other, and further declares that they shall do so when required by law. We do not understand that the first or permissive part of that provision, the part declaring that district judges may hold courts for each other, requires any legislation to make it effective, but it is unquestionably in our opinion, self-executing. And as a self-executing provision of the Constitution it confers all the authority necessary to uphold the jurisdiction of the judge who tried this cause. A very similar provision in the Constitution of the state of Washington was held selfexecuting by the Supreme Court of that state. State v. Holmes, 12 Wash. 169, 40 Pac. 735, 41 Pac. 887; see, also, Hindman v. Boyd, 42 Wash. 17, 84 Pac. 609; Bigcraft v. People, 30 Colo. 298, 70 Pac. 417. The Washington Constitution provides that: "The judge of any superior court may hold a superior court in any county at the request of the judge of the superior court thereof, and upon the request of the Governor it shall be his duty to do so." The court, in State v. Holmes, said: "We are of the opinion that the provision of the Constitution empowering the judge of any superior court to hold court at the request of the superior judge of any county, is self-executing. This provision not being a limitation, but being in the nature of a legislative enactment, it follows that, if the enactment could be sustained and made self-executing if it had been a statutory enactment, it is self-executing as a constitutional enactment." A district judge is not required to hold court for another except when called upon But he may do as provided by the statute. so without reference to the statute, by virtue of the constitutional provision so declaring. We do not suppose that a judge would as sume to act for another without a request that he do so, but such a request is not made a condition of the authority conferred by the Constitution unless by implication, and we are inclined to the opinion that, if necessary, a request might be presumed. the reason that said motion is not in the record by proper bill of exceptions. But we need not rest our conclusion as to Judge Raymond's authority or jurisdiction entirely upon a waiver of the objection. The objection would not have been good at any time. The argument here in support of the objection [4, 5] The latter part of the constitutional that Judge Raymond was improperly called in is that the fact that the judge of the provision, making it the duty of district judgFourth district was otherwise occupied was es to hold courts for each other when required insufficient to authorize calling in a judge of by law, would not be effective in the absence another district. And it seems to be the of legislation placing that duty upon the disthought and contention of counsel for plain-trict judges, either generally or under preAnd we think it would tiff in error, relying upon the statute afore- scribed conditions. said, that unless the regular judge of a dis- not be difficult, if necessary to be decided in trict is disqualified to hear a cause, or is or this case, to find sufficient authority in the will be unable to hear it because of sickness statute for the order calling upon Judge Rayor absence from the state or district, the call- mond to hear, try, and determine the cause. ing of another district judge is unauthorized. The statute was evidently enacted to render Counsel's theory is that under said statute, effective the provision of the Constitution providing that the district judges shall hold aforesaid, declaring it the duty of a district court for each other when from any cause a judge to hold court for another when requirjudge is unable to act, the cause must be one ed by law. The provision of the statute is which disqualifies the judge or renders him that "when from any cause" any district physically unable to act. However the stat- judge is unable to act, or hear, try, or de district courts shall hold courts for each ing time to present a bill for allowance, for other. And the same language is used with reference to the holding of a term or a portion of a term. "Any cause" is a comprehensive term, and in this statute it is not preceded by any words of limited meaning which might narrow or control its interpretation. But as found in the statute it is unlimited and unqualified. And it is not clear at least that the statute might not reasonably be construed as requiring a district judge to hold court for another when, from any cause deemed sufficient by the judge of the other district, he calls upon another judge to hold court for him. Nor is it clear that if a judge, though not disqualified or physically unable to act, is so occupied with other matters which may properly demand his attention at the time, without interfering with a hearing or trial of a case in his court by another judge, that may not be considered a cause rendering him unable to act, strictly within the meaning and purpose of the statute. it is stated in the certificate that no other order was made fixing a time for presenting a bill, and neither in the order overruling the motion for new trial nor elsewhere in the bill or record proper is it shown that such time was asked for or granted. The judge evidently did all that he felt authorized to do by certifying that the several papers contained in the bill as presented were what they purported to be, and that he intended no more than that by signing the presented bill is apparent, we think, from the fact that it is stated in the first part of the so-called bill that on the date of the overruling of the motion for new trial plaintiff in error was given until the first day of the next term of the court to prepare and file his bill of exceptions, and that the judge does not certify to the truth of that statement, but confines his certificate to stating that the bill as presented contains certain papers, adding thereto that no order, except as shown by those papers, was made fixing a time within which to present a bill, and his certificate omits a statement or order allowing the bill. Upon these facts as to the presented bill we think it cannot be considered as a bill of exceptions making the motion for new trial a part of the record. That it is necessary, when exceptions are not reduced to writing and tendered at the trial, that time be asked and granted therefor, and that the record must show that time was granted, was recently held by this court in International Harvester Co. v. Jackson Lumber Co., 170 Pac. 6. The point that Judge Parmelee of the Fourth district was holding court in another room of the courthouse and engaged in the trial of another cause during part of the time that Judge Raymond was presiding in the trial of the case at bar in the courtroom is not raised by the record here. The fact is not otherwise stated, except in the motion for new trial and an affidavit in support thereof, which we find among the original papers and also as a part of what is entitled "Bill of Exceptions." As frequently held by this court, a motion for new trial does not [7] But if the motion was a part of the recbecome a part of the record unless incorpo-ord, the statement in the motion and supportrated in a bill of exceptions. And the so-ing affidavit of the fact that the judge of the called bill in this case does not appear to Fourth district was engaged in the trial of have been allowed or ordered to be made a a cause or holding court at the time that the part of the record as such. Nor does it ap- case at bar was being tried would not be pear that any time was granted when the mo- sufficient. Van Horn v. State, 5 Wyo. 501, tion for new trial was overruled, or at any 40 Pac. 964; Painter & Co. v. Stahley Bros., other time, for reducing the exceptions to 15 Wyo. 510, 90 Pac. 375; Jenkins v. State writing. (on petition for rehearing) 22 Wyo. 34, 134 Pac. 260, 135 Pac. 749. In the case last cited this court said in the opinion: [6] The motion for new trial appears to have been heard and overruled April 10, 1916, and the bill of exceptions appears to have been presented to the trial judge on May 29, 1916. The certificate of the judge to that bill recites that the bill was presented on May 29, 1916, and he certifies that it contains the order of the judge of the Fourth district, assigning the cause to him for trial, a copy of the judgment and verdict of the jury, the motion for a new trial, the affidavits in support thereof and in opposition thereto, and the order overruling the motion and fixing the amount of bond for stay of execution. And he further certifies "that no other order fixing the time within which to present a bill of exceptions was made in said cause." It will be noticed that in this certificate the judge does not state that the bill was allowed, or that it was ordered to be made a part of the record as a bill of exceptions. And it clearly shows that no order was made grant "The court or judge in signing a bill of exceptions certifies that the statements contained in the bill are true, and that the objections, rulthe trial; but he does not certify that the stateings, and exceptions therein stated occurred on ments contained in an affidavit attached to a motion for a new trial are true, or that the matters therein stated occurred on the trial. What occurred on the trial must appear by the bill and not by ex parte affidavits." And this is particularly applicable to this case for, aside from stating in the motion that the regular judge was holding court in another room at the time of the trial of this case, the fact appears only by an affidavit of the defendant filed with and in support of the motion. In Oklahoma, where such fact was asserted only in a motion for new trial and in a subsequent motion for arrest of judgment, it was held insufficient, and that there should be record evidence of the fact to N. E. 335; and see Bigcraft v. People, 30 overcome the presumption of the regularity | Wisner v. People, 156 Ill. 180, 40 N. E. 574; of proceedings in a court of record. Johnson Wells v. People, 156 Ill. 616, 41 N. E. 161; v. State, 1 Okl. Cr. 321, 97 Pac. 1059, 18 Ann, Beach v. People, 157 Ill. 659, 41 N. E. 1117; Cas. 300. Oliver v. State, 70 Tex. Cr. R. 140, 159 S. W. [8] Again, if it had been shown by the rec-235; Courtney v. State, 5 Ind. App. 356, 32 ord that the regular judge of the district was holding court as alleged, that fact would not affect the jurisdiction of the judge who presided in the trial of this case, even if it be assumed that it would have been illegal or improper for both judges to separately hold court in the same county at the same time. The irregularity, if any, in such case, would affect only the case heard before the judge of the Fourth district. 15 R. C. L. 517; List v. Jockheck, 59 Kan. 143, 52 Pac. 420; Johnson v. State, supra; State v. Riley, 26 N. D. 236, 144 N. W. 107. In List v. Jockheck, where it was claimed that while a cause was being tried before a special judge, court was being held in an adjacent room and other cases being tried by the regular judge, and that the special judge was therefore without jurisdiction, it was said: "If the record showed that the plaintiff had objected to this division of judicial authority, it would present a serious question, but it does not appear that such objection was made; besides, the question may well arise as to which of these judges was rightfully in the exercise of the authority to hold court. It would seem that, if the proceedings of either one should be declared void or even erroneous, it would be the proceed ings before the regular judge." "We think it is very probably true that two courts, or two terms of the district court, could not legally be in session in the same county at the same time. * * There is nothing in the record to show that the judge of that district was disposing of other business of the term while this trial was in progress, though there would seem to be no obstacle in the way of his doing so, other than some inconvenience that might arise in obtaining juries under the statute in cases where juries might be required.” In the Colorado case cited a statute seems to have authorized a district judge, when the accumulation of judicial business demands it, to request the assistance of the judge of another district to hold court for him, and the holding of sessions by the two judges in different rooms at the same time. And it was held that such statute was not in viola tion of a constitutional provision identical with section 11 of article 5 of the Constitution of this state. We do not suppose there can be any doubt about the right of a district judge in a county of his district, where a cause is on trial before a judge of another And in Johnson v. State, supra, it was said district, to, transact any business that may that if it had been shown that the regular rightfully be performed out of court. The judge was holding court in the same coun- question sought to be presented here is ty at the time of the trial before the other whether he can separately hold court in the judge, and that objection had been made in same county while a case is being tried beapt time, it would not have affected the pow-fore another judge, in the absence of a staters of the special judge, and the above-quot-ute so providing. That question we do not ed language of the Kansas court in List v. decide. Jockheck was approved. But attention was called to a provision of the Oklahoma Constitution (article 7, § 9) that "two or more district judges may sit in any district separately at the same time," and upon that provision it was held that the regular judge and as many special judges as may have been appointed or selected may sit separately in the same district at the same time. The judgment will be affirmed. BEARD and BLYDENBURGH, JJ., con cur. (178 Cal. 27) In re FRIEDMAN'S ESTATE. HEBREW HOME FOR AGED DISABLED et al. v. FRIEDMAN et al. (S. F. 7796.) (Supreme Court of California. March 25, 1918.) We are not to be understood as intimating that the judge of the Fourth district would have been without authority to hold court or hear another cause in another room of the courthouse while this case was on trial 1. EVIDENCE before the judge of the Seventh district. We GREE. 313-DECLARATIONS-PEDI family or alleged family of a decedent testified express no opinion upon that question, for it is not before us. But it may not be improper to say that, while there is authority to the contrary (see Baisley v. Baisley, 15 Or. 183, 13 Pac. 888), there are a number of decisions to the effect that the regular and substitute judge may hold court at the same time, presiding in the trial of different cases. Dial v. Under Code Civ. Proc. § 2061, subd. 3, proComm., 142 Ky. 32, 133 S. W. 976; Pike v.viding that a witness false in one part of his City of Chicago, 155 Ill. 656, 40 N. E. 567; testimony is to be distrusted in others, the MATERIAL FALSE TESTIMONY-REJECTION OF WHOLE TESTIMONY-STATUTE. |