3. JUDGES ($ 16*)-SPECIAL JUDGE-EXTENT | who acquired no jurisdiction by reason of the OF JURISDICTION. The authority of a special judge, lawfully selected by the parties, to preside over any cause or proceedings in which the regularly elected judge is disqualified by reason of the provisions of our statutes, ceases with the lapsing of the term at which he was selected, unless the case is finally disposed of at such term, and in that case ceases with the final disposition of the cause. [Ed. Note. For other cases, see Judges, Dec. Dig. § 16.*] 4. JUDGES ($ 56*)-DISQUALIFICATION. nullity of prior proceedings had in such action, Appeal from District Court, Texas County; J. L. Dodd and another were convicted of When a trial judge is disqualified to sit in manslaughter, and appeal. Reversed and re the trial of a cause, he cannot make a valid order appointing a special county attorney to appear and prosecute on behalf of the state upon the suggestion of the disqualification of the regularly elected and qualified county attorney. [Ed. Note.-For other cases, see Judges. Dec. Dig. § 56.*] 5. DISTRICT AND PROSECUTING ATTORNEYS (§ 3*)-SPECIAL ATTORNEYS-POWERS. (a) All acts of a special county attorney appointed under a void order of a trial court are themselves void. (b) A special county attorney, when properly appointed by a trial court, before attempting to exercise the functions incumbent upon him by the appointment, should qualify as the law requires. (c) A special county attorney, although lawfully appointed by proper order of the trial court, cannot lawfully perform any of the duties incumbent upon him until he first qualifies as provided by law. [Ed. Note. For other cases, see District and Prosecuting Attorneys, Dec. Dig. § 3.*] 6. DISTRICT AND PROSECUTING ATTORNEYS ($3*)-SPECIAL COUNTY ATTORNEY-FIND INGS-APPOINTMENT. An agreement between a special county attorney, acting under a void appointment of a trial court, and the counsel for the defendant in a criminal action selecting a judge pro tempore to try such criminal action, is itself void, and confers no lawful authority upon such judge pro tempore whatever. manded. Wiley & Edens and J. P. McLaughlin, for plaintiffs in error. Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State. ARMSTRONG, J. An indictment was re turned by the grand jury of Beaver county, Okl., on the 29th day of March, 1907, charging the plaintiffs in error with manslaughter. On the 27th day of February, 1908, the case came on for trial in Beaver county at the regular term of the district court of said county subsequent to statehood. The regular judge of the district court of Beaver county, Hon. R. H. Loofbourrow, was disqualified to try the cause on account of having been county attorney at the time of the arrest of plaintiffs in error, and having conducted the prosecution of plaintiffs in error prior to statehood. [2] County Attorney Albert Welborn, of Beaver county, was disqualified to prosecute on account of having been of counsel for plaintiffs in error prior to the admission of Oklahoma into the Union as a state. Judge Loofbourrow on the 26th day of February, in this cause on the grounds heretofore stat1908, announced his disqualification as judge [Ed. Note.-For other cases, see District and Prosecuting Attorneys, Dec. Dig. § 3.*] 7. JUDGES (§ 16*) — Judgment (§ 9*) - CRIM-ed, and undertook to appoint Charles SwinINAL LAW (§ 142*)-JUDGE PRO TEMPORE dall, a member of the Beaver county bar, as VOID SELECTION-AUTHORITY-CHANGE or special county attorney to prosecute this VENUE. (a) All orders, judgments, and decrees made by a judge pro tempore who is not lawfully selected are a nullity. (b) An order made for the purpose of changing the venue from one county to another by a judge pro tempore who is not lawfully selected, although made upon a petition by the defend ant addressed to him, does not operate to change the venue, and confers no authority upon a judge, duly elected and qualified, to try such cause in the county to which the change of venue is ordered. (c) All orders, judgment, and decrees made by a trial judge duly elected and qualified and presiding at a regular term of court in a criminal case unlawfully transferred by change of venue to such court, except to return the files to the court where they properly belong, are themselves void. cause. Thereafter, on the 27th day of February, said Charles Swindall, under the appointment heretofore mentioned as special county attorney, and counsel for the plaintiffs in error, Wiley & Edens, R. L. Davis, and J. P. McLaughlin, agreed upon Hon. C. T. Whitaker, a member of the Beaver county bar, as judge pro tempore to sit in the trial of the case, and, after being sworn, he proceeded to arraign the plaintiffs in error, and set the cause for trial. The record fails to show that the special county attorney attempted to qualify as the law provides, but assumed to act as though he had qualified. A motion to set aside the indictment was filed and overruled, and a demurrer to the indictment was filed and taken under advise [Ed. Note.-For other cases, see Judges, Dec. Dig. 16; Judgment, Dec. Dig. 89; Criminal Law, Cent. Dig. §§ 264-267; Dec. Dig. §ment until the first day of the next regular 142.*] 8. CRIMINAL LAW (§ 1189*)-APPEAL-REVIEW -APPEAL ON VOID PROCEEDING. When a conviction is had in a trial court and the record on appeal affirmatively discloses the fact that the trial was had before a court term of the district court of Beaver county, and the case continued until said next term by said Whitaker. On the 24th day of August thereafter, it being one of the regular days of the August For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes if the said case was properly transferred to this county and Charles T. Whitaker was ever qualified to act as special judge in said cause after the term in which he was selected, then he would be special judge at this present term to try this cause, and said G. A. Brown would have no right to assume jurisdiction to try said cause. We therefore move that said defendants be discharged, and that th cause be dismissed for want of jurisdiction. Wiley & Edens and J. P. McLaughlin"-which motion was overruled. This record as shown by the above statement raises two questions for our consideration. The petition in error makes many other assignments, but it is unnecessary to consume time and space in discussing them. [4] The first question raised is, Did the district judge, Hon. R. H. Loofbourrow, have the power to appoint a special prosecuting attorney; and, if so, were the acts of said special prosecuting attorney without his qualifying as required by law valid? Second. When does the authority of a judge pro tempore as such cease? term of the Beaver county district court, | ther object to G. A. Brown sitting and actHon. C. T. Whitaker, without further action ing a judge in this case for the reason that, of the parties reselecting him or otherwise, assumed the bench and overruled the demurrer taken under advisement at the previous term of the court, and plaintiffs in error reserved exceptions. On the 1st day of September thereafter Special County Attorney Charles Swindall asked leave of the court to indorse additional witnesses on the indictment, which was granted over the objection of the defendant. On the same date the plaintiffs in error filed their petition for a change of venue, which petition was overruled, and the cause set for trial on the 2d day of September thereafter. A jury was impaneled on this date and the case proceeded to trial. The jury returned a verdict of guilty on the 3d day of September thereafter, and on the same day a motion for a new trial was filed, which motion was by the court sustained on the 4th day of September. On the same date plaintiffs in error filed a petition for change of venue, which was overruled, and on the 5th day of September thereafter plaintiffs in error were allowed to make additional showing on the petition for change of venue, and upon additional showing the order overruling the petition for change of venue was set aside, and the petition allowed, and the venue changed from the district court of Beaver county to the district court of Texas county, all of which proceedings were had before Hon. Chas. T. Whitaker, who had been selected as judge pro tempore at the February, 1908, term of the district court of Beaver county in the manner set out supra. On the 28th day of September, 1908, the record recites that "the district court of Texas county, Oklahoma, being in session in said Texas county, Oklahoma, * * * the said Chas. T. Whitaker assuming power to sit as special judge in said cause makes the following order: Such order was that the case of the State of Oklahoma v. J. L. Dodd and Mary Dodd be continued until the next regular term of the district court of Texas county and that they stand on the bond already given." On the 11th day of February, 1909, plaintiffs in error filed the following motion in the district court of Texas county, where Judge G. A. Brown, having been assigned, by order of the Chief Justice of the Supreme Court of Oklahoma, to hold the February term of the Texas county district court, was presiding: "Comes now the defendants, by their attorneys, Wiley & Edens and J. P. McLaughlin, and object to the jurisdiction of this court for the reason that the said cause has never been legally transferred or sent on change of venue from Beaver county, Oklahoma, to Texas county, Oklahoma, by any judge qualified to transfer said cause. The defendants further object to any action being taken by this court in said cause for the reason that this court is without juris [6] If Judge Loofbourrow could not make the appointment by reason of his disqualification, then any agreement made by the special county attorney so appointed, whether he took the oath as required by law or not, looking to the selection of a judge pro tempore to try, this cause would be a nullity. [1] Under the law in force at the time this appointment was made, a district judge when disqualified to sit in the trial of a cause could make one order only, and that order was the order certifying his disqualification. This question has been passed upon by the Supreme Court of Oklahoma Territory, the Supreme Court of this state, and by this court. Cullins et al. v. Overton, Sheriff, et al., 7 Okl. 470, 54 Pac. 702; Lewis v. Russell, Judge, 4 Okl. Cr. 129, 111 Pac. 818; Cowart v. State, 4 Okl. Cr. 122, 111 Pac. 672; Buchanan v. State, 2 Okl. Cr. 126, 101 Pac. 295. Under the rule announced by these courts, and nowhere varied from, the trial judge, Hon. R. H. Loofbourrow, had no authority to make the appointment, and the order entered for that purpose by him was null, and the appointment therefore void. [5] It follows as a natural consequence that all the acts of the special county attorney were likewise void. This being true, it necessarily follows that the selection of Hon. C. T. Whitaker as judge pro tempore was not lawfully made, and conferred upon him no authority to sit as a judge and try this case, and all orders or judgments made by him were a nullity. These questions were not raised before Judge Brown when the case was called for trial in the district court of Texas county. The only question there raised was the ques tion of the right of the judge pro tempore to Kan.) INTERNATIONAL FILTER CO. v. CANEY ICE & COLD STORAGE CO. 635 and order the venue changed after the laps (Syllabus by the Court.) (84 Kan. 705) SALES (8 404*)-BREACH OF WARRANTY RIGHTS OF BUYER. In a sale of a machine, under an executory contract, which was to be tested within a fixed time, and which did not correspond with the representations and warranty, the buyer may elect to return the machine or he may retain it and recoup the damages sustained by the breach of the contract. [Ed. Note. For other cases, see Sales, Cent. Dig. § 1146; Dec. Dig. § 404.*] ing of the term at which the judge pro tem- INTERNATIONAL FILTER CO. v. CANEY pore was selected to preside over the hearICE & COLD STORAGE CO. ing of this cause. The question of when the (Supreme Court of Kansas. May 6, 1911.) authority of a judge pro tempore ceases has not been before this court in the light it is now presented heretofore. The question as 1. it is now presented is: Does the authority of a judge pro tempore cease with the lapsing of the term of the court during which he is selected to preside over the trial of a case, or does it continue until the case is finally tried and disposed of? The Supreme Court of Wisconsin in the case of Fordyce v. State, and State V. Fordyce, reported in 115 Wis. 608, 92 N. W. 430, in discussing this identical question as to when the authority of a judge pro tempore ceases, held that this authority ceases with the lapsing of the term of the court at which he is called to preside over the trial of a certain cause. The statute in that state provides that the trial judge, when he is disqualified to preside over the trial of any cause, may call another judge to preside over the trial. Our statute provides that the parties may agree on a special judge to preside in his stead. The principle is the same. [3] The rule announced in the Wisconsin case cited, supra, is that contemplated by our law. The authority of a special judge selected by the parties to preside instead of the regularly elected judge, who is disqualified by reason of any of the provisions of our statutes, ceases with the lapsing of the term during which he is selected, unless the case is finally disposed of at such term, and in that case ceases with the final disposition of the cause. [7] The proceedings had in this cause from and including the appointment of the special county attorney by Judge Loofbourrow to and including the judgment rendered against the plaintiffs in error from which this appeal is prosecuted are a nullity. This cause is still pending in the district court of Beaver county. [8] All proceedings had herein subsequent to the appointment of the special county attorney and including that appointment are hereby set aside, and plaintiffs in error are directed to appear before the district court of Beaver county at the next regular term thereof. The clerk of this court is directed to forward the mandate in this case to the clerk of the district court of Texas county to be by him recorded in the proper records of said court, and forwarded to the district court of Beaver county to be likewise recorded. The clerk of the district court of Texas county is also directed to forthwith return the files originally forwarded on the change of venue from Beaver county to the district court of said Beaver county. FURMAN, P. J., and DOYLE, J., concur. 2. SALES (§ 427*) — WARRANTY — BREACH RIGHTS OF BUYER. If there is an express warranty of the quality of an article sold and there is a breach of the warranty, the vendee's right to recover damages survives the acceptance of the article by damages, whether it be regarded as an executhe buyer, and he may recover or recoup his tory or present sale. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1210-1213; Dec. Dig. § 427.*] Appeal from District Court, Montgomery County. Action by the International Filter Company against the Caney Ice & Cold Storage Company. Judgment for defendant, and plaintiff appeals. Affirmed. W. A. Merrill (Seitz, Bryan & Wilber, of counsel), for appellant. Geo. H. Wark (Ed. H. Chandler, of counsel), for appellee. JOHNSTON, C. J. This was an action to recover the price of a filter sold by the International Filter Company to the Caney Ice & Cold Storage Company. In response to a letter from the ice company, the filter company wrote that its filters would remove all foreign suspended matter from the water, free it from oil and discoloration, and assure uniformly clear ice, and it proposed to ship one on the condition that it might be returned within 35 days if in its use, according to directions, satisfactory results were not obtained. The trial offer was accepted by the ice company on September 21, 1908, and on September 23, 1908, a filter was shipped to it from Chicago, and at the same time the filter company wrote, advising the ice company of the shipment and asking it to report if any difficulties in operation were encountered. On October 28, 1908, the ice company wrote the filter company that they had not been able to give the filter a thorough test on account of the fact that the machinery was not working well, and that the ice produced contained foreign matter, but that they were not able to determine whether it was a defect in the filter or defects in their plant, and they asked that the trial period be extended for a week or more until they could make a more complete test. In answer to this letter, the filter company For other case: see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes wrote, suggesting that they thought that the defects were due to the machinery of the ice plant rather than the filter, and they made a number of suggestions as to the cause of the trouble and how it might be remedied. They further stated that the time for trial had expired, but that, as an accommodation, they were willing to extend the date of payment to November 15, 1908. On November 16, 1908, the filter company drew on the ice company for the price of the filter, but the ice company refused to pay the draft, saying that the filter would not take foreign matter out of the ice, and was not up to the warranty in other respects. In addition to this correspondence, there was testimony that, in response to another letter written by the ice company to the effect that the filter was working badly, the filter company wrote extending the time of trial, and guaranteeing to make the filter work satisfactorily, but that the letter was lost. On November 27, 1908, the ice company returned the filter to Chicago, where it was received by the filter company, who stated that they were holding it subject to the order of the ice company. This action was brought for the invoice price of the filter, and the defense was rescission and return of the filter as provided by contract, a breach of the warranty of sale, and damages for the breach. The case was tried without a jury, and a general finding in favor of the ice company was made. The evidence relating to the right of rescission, and as to the warranty, is conflicting, and nothing in the record discloses what is embraced in the general finding or upon what theory judgment was rendered. In reaching its decision, the court was at liberty to accept the testimony of appellee, and all reasonable presumptions must be indulged in support of the general finding which the court made. It is contended that as the ice company did not notify the filter company of its purpose to return the filter, nor return it within the 35 days, the sale became absolute, and the ice company liable for the price. According to some of the testimony, the time of return of the filter, if it did not work well, was extended, and, although the letter was not produced, the finding of the court may have been based on the secondary evidence of the contents of this letter. There was evidence, too, of representations and warranties of quality by the seller, and also testimony that the filter did not correspond to the warranty. If the evidence of the appellee was believed by the court, the filter was found to be unsatisfactory and inferior after a fair test had been made, and, further, that it was returned within the time as extended and agreed upon between the parties. tain it and recoup the damages sustained by reason of the breach of the seller's contract. [2] The contract involved appears to be executory in its nature, and when the vendee, after a test in good faith, found that the filter did not meet the warranty, he had a right to return it within the agreed time, and, if there was an express warranty as claimed, the right to recover or set-off the damages resulting from the breach of warranty would survive an acceptance of the filter whether the contract was executory or complete. Graff v. Osborne, 56 Kan. 162, 42 Pac. 704; Underwood et al. v. Wolf, 131 Ill. 425, 23 N. E. 598, 19 Am. St. Rep. 40; Fairbank Canning Co. v. Metzger et al., 118 N. Y. 260, 23 N. E. 372, 16 Am. St. Rep. 753; Benjamin on Sales (5th Ed.) 1913. The judgment is affirmed. All the Justices concurring. (84 Kan. 682) BUCKNER v. WINGARD. (Supreme Court of Kansas. April 8, 1911.) (Syllabus by the Court.) 1. EVIDENCE (§ 264*)-ADMISSIONS. An admission that a tax deed was issued implies, in the absence of any showing to the contrary, that the deed was regularly issued and valid in all respects. [Ed. Note.-For other cases, Cent. Dig. § 1028; Dec. Dig. § 264.*] see Evidence, 2. EVIDENCE (§ 264*)-ADMISSIONS. An admission by a party claiming under a tax deed that his adversary is the owner of the original government title does not imply that the original title has not been extinguished by the tax deed. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 264.*] 3. LIMITATION OF ACTIONS (8_19*)-ACTION FOR POSSESSION UNDER TAX DEED. fore the two-year statute of limitations has Where the holder of a valid tax deed, bebarred his right to recover possession under it. obtains the actual and peaceable possession of the land conveyed, the requirement of such statute is satisfied, and, if he thereafter loses possession, his right to recover it endures until it is barred by the general statute of limitations. [Ed. Note.-For other cases, see Limitation of Actions, Dec. Dig. § 19.*] 4. TAXATION ($ 805*)-DEFECT IN TAX DEED. it from year to year to a tenant who uses it for Where the original owner of the land leases raising crops, the holder of a tax title good upon its face cannot, by taking possession beting in of another, acquire the right to invoke tween the harvesting of one crop and the putthe five-year statute of limitations and thereby prevent the showing of latent defects in his deed. [Ed. Note. For other cases, see Taxation,. Dec. Dig. § 805.*] 5. TAXATION (§ 805*)-ACTION TO RECOVER LAND SOLD FOR TAXES. Where there has been an actual occupation after the issuance of a tax deed, by the original owner or by the holder of the tax title, the op[1] Under the testimony, there was ground posing claimant, by gaining possession before the statute of limitations has barred his right, for holding that appellee had a right to recan stay its operation against himself; but he turn the filter, or, if he elected, he could re-cannot, by merely getting a physical possession and compelling the former occupant to take the offensive, either gain a right to the protection of the statute of limitations himself, or deprive his adversary of such a right. [Ed. Note. For other cases, see Taxation, Dec. Dig. § 805.*] Appeal from District Court, Sedgwick County. Action by W. T. Buckner against Ratie S. Wingard. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Stanley & Stanley, for appellant. Brubacher & Conly, for appellee. MASON, J. The holder of the original title recovered in ejectment against one claiming under a tax deed, who appeals. [1] The tax deed was not introduced in evidence, but its execution was admitted. Nothing having been shown to the contrary, it must be presumed that it was regularly issued and valid in all respects. Of course, a party relying upon a tax deed could not be permitted to testify that one had been issued to him, and thereby secure the benefit of the presumption of regularity, without subjecting the instrument to objection for defects appearing upon its face; but, where the opponent voluntarily admits that a tax deed was executed, the presumption that public officers do their duty requires the court in the absence of any further showing to regard it as valid. [2] The defendant admitted that "the plaintiff by a chain of title from the government is the owner of the original title." The suggestion is made that this implies that the tax deed is invalid, since otherwise it would have extinguished the original title. Such an interpretation would extend the admission beyond its obvious meaning. The tax deed was issued and recorded March 31, 1899. The grantee at once occupied the property and held it for four years. Such at least was the defendant's evidence, and, as its truth does not seem to have been challenged, we shall assume that the court believed it. In the spring of 1903 the original owner (the plaintiff) obtained possession which continued for more than two years. Then the tax title claimant (the defendant) acquired possession, which she maintained until the beginning of the action, November 24, 1908. [3] The plaintiff contends that, when he took possession of the property in 1903, the statute of limitations (Gen. St. 1909, § 5608, subd. 3) began to run in his favor; that in two years its bar become complete; and that thereupon the tax title was practically extinguished, and its holder could neither maintain ejectment, nor by taking physical possession acquire a standing to resist such an action when brought by the original own [4] And, when the statute has once run against a tax deed, the holder cannot evade its effect merely by finding the premises temporarily unoccupied and taking physical possession. But when, in the present case, the grantee of the tax deed, immediately upon its being recorded, obtained actual, peaceable, and undisputed possession of the tract conveyed, the two-year statute of limitation A valid tax deed could no longer apply. vests a perfect title in the grantee and extinguishes the original title, subject to the condition, imposed by the statute of limitation, that the right of possession must be asserted before there has been an adverse occupancy for two years. The obtaining of actual possession under the tax deed satisfies this condition as effectually as though a successful action of ejectment had been instituted. Thereafter the tax title holder claims not merely under the tax deed, but under the tax deed supplemented by a legal taking of possession. His title has become absolute. and if he loses possession his right to its recovery endures until it is barred by the general statute of limitations. It follows from this view that, if the tax deed is in fact valid in all respects, the defendant is entitled to judgment, however her present possession was acquired, since her earlier possession made her the absolute owner of the property. If the deed is invalid upon its face, she of course cannot recover, for she then has no title. But as it may develop that the deed is apparently good, but is voidable for some latent defect, we are required to decide the effect of that condition, under whatever changes of possession may be shown at a new trial. Speaking of that kind of a tax deed, if the land affected remains vacant for five years after it has been recorded, and the patent title holder then takes possession, the tax title holder cannot maintain ejectment, for in that situation he cannot invoke the benefit of the five-year statute of limitations (Gen. St. 1909, § 9483) to prevent an inquiry into the proceedings back of his deed. Stump v. Burnett, 67 Kan. 589, 73 Pac. 894. The fact that the tax title holder at one time had actual possession does not change the rule, if he lost it before the five years had expired. Inasmuch as the original owner can within five years successfully prosecute ejectment, it follows that, if within that period he obtains actual possession, he has only procured what the law would give him, and he can maintain it whenever attacked by showing the in For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |