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3. JUDGES (8 16*)--SPECIAL JUDGE-EXTENT / who acquired no jurisdiction by reason of the OF JURISDICTION.

nullity of prior proceedings had in such action, The authority of a special judge, lawfully the judgment and all irregular proceedings bad selected by the parties, to preside over any cause in such action will be set aside by this court, or proceedings in which the regularly elected and defendant held to appear before the proper judge is disqualified by reason of the provisions trial court to await further action. of our statutes, ceases with the lapsing of the term at which he was selected, unless the case Law, Cent. Dig. 88 3225-3227'; Dec. Dig. $

[Ed. Note.-For other cases,

see Criminal is finally disposed of at such term, and in that

1189.*] case ceases with the final disposition of the

Appeal from District Court, Texas County ; [Ed. Note.-For other cases, see Judges, Dec. G. A. Brown, Judge. Dig. $ 16.*]

J. L. Dodd and another were convicted of 4. JUDGES (8 56*)-DISQUALIFICATION.

manslaughter, and appeal. Reversed and reWhen a trial judge is disqualified to sit in the trial of a cause, he cannot make a valid or

manded. der appointing a special county attorney to ap- Wiley & Edens and J. P. McLaughlin, for pear and prosecute on behalf of the state upon the suggestion of the disqualification of the

plaintiffs in error. Chas. West, Atty. Gen., regularly elected and qualified county attorney. and Smith C. Matson, Asst. Atty. Gen., for

(Ed. Note.-For other cases, see Judges. Dec. the State. Dig. $ 56.*] 5. DISTRICT AND PROSECUTING ATTORNEYS ARMSTRONG, J. An indictment was re($ 3*)-SPECIAL ATTORNEYS-POWERS. (a) All acts of a special county attorney

turned by the grand jury of Beaver county, appointed under a void order of a trial court Okl., on the 29th day of March, 1907, chargare themselves void.

ing the plaintiffs in error with manslaughter. (b) A special county attorney, when proper. On the 27th day of February, 1908, the case ly appointed by trial court, before attempting to exercise the functions incumbent upon bim came on for trial in Beaver county at the by the appointment, should qualify as the law regular term of the district court of said requires.

county subsequent to statehood. The regu(c) A special county attorney, although lar judge of the district court of Beaver lawfully appointed by proper order of the trial court, cannot lawfully perform any of the du- county, Hon. R. H. Loofbourrow, was disties incumbent upon him until he first qualifies qualified to try the cause on account of havas provided by law.

ing been county attorney at the time of the [Ed. Note.--For other cases, see District and arrest of plaintiffs in error, and having con. Prosecuting Attorneys, Dec. Dig. $ 3.*]

ducted the prosecution of plaintiffs in error 6. DISTRICT AND PROSECUTING ATTORNEYS

($ 3*)-SPECIAL County ATTORNEY – FIND- prior to statehood. INGS-APPOINTMENT.

[2] County Attorney Albert Welborn, of An agreement between a special county Beaver county, was disqualified to prosecute attorney, acting under a void appointment of a

on account of having been of counsel for trial court, and the counsel for the defendant in a criminal action selecting a judge pro tem- plaintiffs in error prior to the admission of pore to try such criminal action, is itself void. Oklahoma into the Union as a state. Judge and confers no lawful authority upon such Loofbourrow on the 26th day of February, judge pro tempore whatever. [Ed. Note. For other cases, see District and in this cause on the grounds heretofore stat

1908, announced his disqualification as judge Prosecuting Attorneys, Dec. Dig. $ 3.*] 7. JUDGES (16*) – Judgment ($ 9*) – CRIM-ed, and undertook to appoint Charles Swin

INAL LAW (8 142*)—JUDGE PRO TEMPORE- dall, a member of the Beaver county bar, as VOID SELECTION-AUTHORITY-CHANGE OF special county attorney to prosecute this VENUE.

cause. Thereafter, on the 27th day of Feb(a) All orders, judgments, and decrees made by a judge pro tempore who is not lawfully se- ruary, said Charles Swindall, under the aplected are a nullity.

pointment heretofore mentioned as special (b) An order made for the purpose of chang. county attorney, and counsel for the plaining the venue from one county to another by a tiffs in error, Wiley & Edens, R. L. Davis, judge pro tempore who is not lawfully selected, although made upon a petition by the defend and J. P. McLaughlin, agreed upon Hon, C. ant addressed to him, does not operate to change T. Whitaker, a member of the Beaver counthe venue, and confers no authority upon a ty bar, as judge pro tempore to sit in the trijudge, duly elected and qualified, to try such ca use in the county to which the change of al of the case, and, after being sworn, he venue is ordered.

proceeded to arraign the plaintiffs in error, (c) All orders, judgment, and decrees made and set the cause for trial. The record fails by a trial judge duly elected and qualified and to show that the special county attorney atpresiding at a regular term of court in a criminal case unlawfully transferred by change of tempted to qualify as the law provides, but venue to such court, except to return the files assumed to act as though he had qualified. to the court where they properly belong, are A motion to set aside the indictment was themselves void.

[Ed. Note.-For other cases, see Judges, Dec. filed and overruled, and a demurrer to the Dig: § 16;* Judgment, Dec. Dig. $ 9;* Crim: indictment was filed and taken under adviseinal Law, Cent. Dig. $8 264–267; Dec. Dig. 8 ment until the first day of the next regular 142.*]

term of the district court of Beaver county, 8. CRIMINAL LAW (f 1189*)APPEAL-REVIEW and the case continued until said next term -APPEAL ON VOID PROCEEDING.

by said Whitaker. When a conviction is had in a trial court and the record on appeal affirmatively discloses

On the 24th day of August thereafter, it the fact that the trial was had before a court 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

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, if the said case was properly transferred to assumed the bench and overruled the demur- this county and Charles T. Whitaker was rer taken under advisement at the previous ever qualified to act as special judge in said term of the court, and plaintiffs in error re cause after the term in which he was seserved exceptions. On the 1st day of Sep- lected, then he would be special judge at this tember thereafter Special County Attorney present term to try this cause, and said G. Charles Swindall asked leave of the court to A. Brown would have no right to assume indorse additional witnesses on the indict- jurisdiction to try said cause. We therefore ment, which was granted over the objection move that said defendants be discharged, of the defendant. On the same date the and that th, cause be dismissed for want of plaintiffs in error filed their petition for a jurisdiction. Wiley & Edens and J. P. Mcchange of venue, which petition was over- Laughlin"-which motion was overruled. ruled, and the cause set for trial on the 2d This record as shown by the above stateday of September thereafter. A jury was ment raises two questions for our consideraimpaneled on this date and the case proceed- tion. The petition in error makes many othed to trial. The jury returned a verdict of er assignments, but it is unnecessary to conguilty on the 3d day of September thereafter, sume time and space in discussing them. and on the same day a motion for a new [4] The first question raised is, Did the trial was filed, which motion was by the district judge, Hon. R. H. Loofbourrow, have court sustained on the 4th day of September. the power to appoint a special prosecuting On the same date plaintiffs in error filed a attorney; and, if so, were the acts of said petition for change of venue, which was over- special prosecuting attorney without his ruled, and on the 5th day of September qualifying as required by law valid? Secthereafter plaintiffs in error were allowed to ond. When does the authority of a judge pro make additional showing on the petition for tempore as such cease? change of venue, and upon additional show [6] If Judge Loofbourrow could not make ing the order overruling the petition for the appointment by reason of his disqualichange of venue was set aside, and the peti- fication, then any agreement made by the tion allowed, and the venue changed from special county attorney so appointed, wheththe district court of Beaver county to the er he took the oath as required by law or district court of Texas county, all of which not, looking to the selection of a judge pro proceedings were had before Hon. Chas. T. tempore to try, this cause would be a nullity. Whitaker, who had been selected as judge [1] Under the law in force at the time this pro tempore at the February, 1908, term of appointment was made, a district judge when the district court of Beaver county in the disqualified to sit in the trial of a cause manner set out supra. On the 28th day of could make one order only, and that order September, 1908, the record recites that "the was the order certifying his disqualification. district court of Texas county, Oklahoma, This question has been passed upon by the

* being in session in said Texas coun- Supreme Court of Oklahoma Territory, the ty, Oklahoma, * the said Chas. T. Supreme Court of this state, and by this Whitaker assuming power to sit as special court. Cullins et al. v. Overton, Sheriff, et judge in said cause makes the following or- al., 7 Okl. 470, 54 Pac. 702; Lewis v. Russell, der: Such order was that the case of the Judge, 4 Okl. Cr. 129, 111 Pac. 818; Cowart State of Oklahoma v. J. L. Dodd and Mary v. State, 4 Okl. Cr. 122, 111 Pac. 672; BuDodd be continued until the next regular chanan v. State, 2 Okl. Cr. 126, 101 Pac. 295. term of the district court of Texas county Under the rule announced by these courts, and that they stand on the bond already giv- and nowhere varied from, the trial judge, en.” On the 11th day of February, 1909, Hon. R. H. Loofbourrow, had no authority plaintiffs in error filed the following motion to make the appointment, and the order enin the district court of Texas county, where tered for that purpose by him was null, and Judge G. A. Brown, having been assigned, the appointment therefore void. by order of the Chief Justice of the Supreme [5] It follows as a natural consequence Court of Oklahoma, to hold the February that all the acts of the special county atterm of the Texas county district court, was torney were likewise void. This being true, presiding: "Comes now the defendants, by it necessarily follows that the selection of their attorneys, Wiley & Edens and J. P. Hon. C. T. Whitaker as judge pro tempore McLaughlin, and object to the jurisdiction was not lawfully made, and conferred upon of this court for the reason that the said him no authority to sit as a judge and try cause has never been legally transferred or this case, and all orders or judgments made sent on change of venue from Beaver county, by him were a nullity. Oklahoma, to Texas county, Oklahoma, by These questions were not raised before any judge qualified to transfer said cause. Judge Brown when the case was called for The defendants further object to any action trial in the district court of Texas county. being taken by this court in said cause for The only question there raised was the ques. the reason that this court is without juris- tion of the right of the judge pro tempore to

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Kan.) INTERNATIONAL FILTER CO. v. CANEY ICE & COLD STORAGE CO.

635

and order the venue changed after the laps

(84 Kan. 705) ing of the term at which the judge pro tem- INTERNATIONAL FILTER CO. v. CANEY pore was selected to preside over the hear

ICE & 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

(Syllabus by the Court.) now presented heretofore. The question as 1. SALES (8 404*)—BREACH OF WARRANTY

RIGHTS OF BUYER. it is now presented is: Does the authority

In a sale of a machine, under an execuof a judge pro tempore cease with the laps-tory contract, which was to be tested within a ing of the term of the court during which he fixed time, and which did not correspond with is selected to preside over the trial of a case, the representations and warranty, the buyer or does it continue until the case is finally tain it and recoup the damages sustained by

may elect to return the machine or he may retried and disposed of? The Supreme Court the breach of the contract. of Wisconsin in the case of Fordyce v. State, [Ed. Note.-For other cases, see Sales, Cent. and State v. Fordyce, reported in 115 Dig. $ 1146; Dec. Dig. $ 404. *] Wis. 608, 92 N. W. 430, in discussing this 2. SALES (8 427*) — WARRANTY - BREACH identical question as to when the authority

RIGHTS OF BUYER. of a judge pro tempore ceases, held that this ity of an article sold and there is a breach of

If there is an express warranty of the qualauthority ceases with the lapsing of the the warranty, the vendee's right to recover damterm of the court at which he is called to ages survives the acceptance of the article by preside over the trial of a certain cause. damages, whether it be regarded as an execu

the buyer, and he may recover or recoup his The statute in that state provides that the tory or present sale. trial judge, when he is disqualified to pre [Ed. Note.- For other cases, see Sales, Cent. side over the trial of any cause, may call Dig. $$ 1210–1213; Dec. Dig. $ 427.*] another judge to preside over the trial. Our

Appeal from District Court, Montgomery statute provides that the parties may agree

County. on a special judge to preside in his stead.

Action by the International Filter ComThe principle is the same.

[3] The rule announced in the Wisconsin pany against the Caney Ice & Cold Storcase cited, supra, is that contemplated by age Company. Judgment for defendant, and our law. The authority of a special judge plaintiff appeals. Affirmed. selected by the parties to preside instead of W. A. Merrill (Seitz, Bryan & Wilber, of the regularly elected judge, who is disqual counsel), for appellant. Geo. H. Wark (Ed. ified by reason of any of the provisions of H. Chandler, of counsel), for appellee. our statutes, ceases with the lapsing of the term during which he is selected, unless the JOHNSTON, C. J. This was an action to case is finally disposed of at such term, and recover the price of a filter sold by the Inin that case ceases with the final disposition ternational Filter Company to the Caney Ice of the cause.

& Cold Storage Company. In response to a [7] The proceedings had in this cause from letter from the ice company, the filter comand including the appointment of the special pany wrote that its filters would remove all county attorney by Judge Loofbourrow to foreign suspended matter from the water, and including the judgment rendered against free it from oil and discoloration, and asthe plaintiffs in error from which this appeal sure uniformly clear ice, and it proposed to is prosecuted are a nullity. This cause is ship one on the condition that it might be still pending in the district court of Beaver returned within 35 days if in its use, accordcounty.

ing to directions, satisfactory results were [8] All proceedings had herein subsequent not obtained. The trial offer was accepted to the appointment of the special county at- by the ice company on September 21, 1908, torney and including that appointment are and on September 23, 1908, a filter was shiphereby set aside, and plaintiffs in error are ped to it from Chicago, and at the same time directed to appear before the district court the filter company wrote, advising the ice of Beaver county at the next regular term company of the shipment and asking it to thereof. The clerk of this court is directed report if any difficulties in operation were to forward the mandate in this case to the encountered. On October 28, 1908, the ice clerk of the district court of Texas county to company wrote the filter company that they be by him recorded in the proper records had not been able to give the filter a thor‘of said court, and forwarded to the district ough test on account of the fact that the court of Beaver county to be likewise record- machinery was not working well, and that ed. The clerk of the district court of Texas the ice produced contained foreign matter, county is also directed to forthwith return the but that they were not able to determine files originally forwarded on the change of whether it was a defect in the filter or devenue from Beaver county to the district fects in their plant, and they asked that the court of said Beaver county.

trial period be extended for a week or more

until they could make a more complete test. FURMAX, P. J., and DOYLE, J., concur. 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 tain it and recoup the damages sustained by defects were due to the machinery of the ice reason of the breach of the seller's contract. plant rather than the filter, and they made [2] The contract involved appears to be exa number of suggestions as to the cause of ecutory in its nature, and when the vendee, the trouble and how it might be remedied. after a test in good faith, found that the filThey further stated that the time for trial ter did not meet the warranty, he had a had expired, but that, as an accommodation, right to return it within the agreed time, they were willing to extend the date of pay- and, if there was an express warranty as ment to November 15, 1908. On November claimed, the right to recover or set-off the 16, 1908, the filter company drew on the ice damages resulting from the breach of warcompany for the price of the filter, but the ranty would survive an acceptance of the filice company refused to pay the draft, saying ter whether the contract was executory or that the filter would not take foreign matter complete. Graff v. Osborne, 56 Kan. 162, out of the ice, and was not up to the warran- 42 Pac. 704; Underwood et al. v. Wolf, 131 ty in other respects. In addition to this cor- 111. 425, 23 N. E. 598, 19 Am. St. Rep. 40; respondence, there was testimony that, in Fairbank Canning Co. v. Metzger et al., 118 response to another letter written by the ice N. Y. 260, 23 N. E. 372, 16 Am. St. Rep. 753; company to the effect that the filter was Benjamin on Sales (5th Ed.) 1013. working badly, the filter company wrote ex The judgment is affirmed. All the Justending the time of trial, and guaranteeing tices concurring. to make the filter work satisfactorily, but that the letter was lost. On November 27, 1908, the ice company returned the filter to

(84 Kan. 682) Chicago, where it was received by the filter

BUCKNER v. WINGARD. company, who stated that they were holding (Supreme Court of Kansas. April 8, 1911.) it subject to the order of the ice company.

(Syllabus by the Court.) This action was brought for the invoice price

1. EVIDENCE ( 264*)-ADMISSIONS. of the filter, and the defense was rescission

An admission that a tax deed was issued and return of the filter as provided by con- implies, in the absence of any showing to the tract, a breach of the warranty of sale, and contrary, that the deed was regularly issued and

valid in all respects. damages for the breach. The case was tried without a jury, and a general finding in fa- Cent. Dig. § 1028; Dec. Dig. $ 264.*]

[Ed. Note.-For other cases, see Evidence, vor of the ice company was made.

2. EVIDENCE (264*)-ADMISSIONS. The evidence relating to the right of re An admission by a party claiming under a scission, and as to the warranty, is conflict- tax deed that his adversary is the owner of the ing, and nothing in the record discloses what original government title does not imply that is embraced in the general finding or upon the tax deed.

the original title has not been extinguished by what theory judgment was rendered. In [Ed. Note.--For other cases, see Evidence, reaching its decision, the court was at lib- Dec. Dig. § 264.*] erty to accept the testimony of appellee, and 3. LIMITATION OF ACTIONS ($_19*)-ACTION all reasonable presumptions must be indulg

FOR POSSESSION UNDER TAX DEED. ed in support of the general finding which fore the two-year statute of limitations' has

Where the holder of a valid tax deed, bethe court made. It is contended that as the barred his right to recover possession under it, ice company did not notify the filter com- obtains the actual and peaceable possession of pany of its purpose to return the filter, nor the land conveyed, the requirement of such stat

ute is satisfied, and, if he thereafter loses possesreturn it within the 35 days, the sale be sion, his right to recover it endures until it came absolute, and the ice company liable is barred by the general statute of limitations. for the price. According to some of the tes [Ed. Note.-For other cases, see Limitation of timony, the time of return of the filter, if Actions, Dec. Dig. $ 19.*] it did not work well, was extended, and, 4. TAXATION ($ 805*)-DEFECT IN TAX DEED. although the letter was not produced, the it from year to year to a tenant who uses it for

Where the original owner of the land leases finding of the court may have been based raising crops, the holder of a tax title good upon the secondary evidence of the contents on its face cannot, by taking possession beof this letter. There was evidence, too, of tween the harvesting of one crop and the putrepresentations and warranties of quality the five-year statute of limitations and thereby

ting in of another, acquire the right to invoke by the seller, and also testimony that the prevent the showing of latent defects in his filter did not correspond to the warranty. deed. If the evidence of the appellee was believed [Ed. Note.--For other cases, see Taxation, by the court, the filter was found to be un- Dec. Dig. $ 805.*] satisfactory and inferior after a fair test had 5. TAXATION (8 805*)-ACTION TO RECOVER been made, and, further, that it was return

LAND SOLD FOR TAXES.

Where there has been an actual occupation ed within the time as extended and agreed after the issuance of a tax deed, by the original upon between the parties.

owner or by the holder of the tax title, the op[1] Under the testimony, there was ground posing claimant, by gaining possession before for holding that appellee had a right to re- can stay its operation against himself; but he

the statute of limitations has barred his right, 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, the land had remained vacant and unoccuoffensive, either gain a right to the protection pied. The statute would in that case have of the statute of limitations himself, or deprive his adversary of such a right.

begun to run when the original owner took [Ed. Note.--For other cases, see Taxation, possession, and, when such possession had Dec. Dig. '$ 805.*]

continued for two years, all right of action Appeal from District Court, Sedgwick on the part of the tax deed holder would County.

have been lost. Coale v. Campbell, 58 Kan. Action by W. T. Buckner against Ratie s. 480, 49 Pac, 604. Wingard. Judgment for plaintiff, and de [4] And, when the statute has once run fendant appeals. Reversed and remanded. against a tax deed, the holder cannot evade

its effect merely by finding the premises Stanley & Stanley, for appellant. Brubacher & Conly, for appellee.

temporarily unoccupied and taking physical

possession. But when, in the present case, MASON, J. The holder of the original ti- the grantee of the tax deed, immediately uptle recovered in ejectment against one claim-on its being recorded, obtained actual, peaceing under a tax deed, who appeals.

able, and undisputed possession of the tract [1] The tax deed was not introduced in conveyed, the two-year statute of limitation evidence, but its execution was admitted. could no longer apply. A valid tax deed Nothing having been shown to the contrary, vests a perfect title in the grantee and exit must be presumed that it was regularly tinguishes the original title, subject to the issued and valid in all respects. Of course, condition, imposed by the statute of limitaa party relying upon a tax deed could not be tion, that the right of possession must be aspermitted to testify that one had been is-serted before there has been an adverse ocsued to him, and thereby secure the benefit cupancy for two years. The obtaining of acof the presumption of regularity, without tual possession under the tax deed satisfies subjecting the instrument to objection for this condition as effectually as though a sucdefects appearing upon its face; but, where cessful action of ejectment had been institutthe opponent voluntarily admits that a tax ed. Thereafter the tax title holder claims deed was executed, the presumption that not merely under the tax deed, but under the public officers do their duty requires the tax deed supplemented by a legal taking of court in the absence of any further showing possession. His title has become absolute. to regard it as valid.

and if he loses possession his right to its re[2] The defendant admitted that “the covery endures until it is barred by the genplaintiff by a chain of title from the govern eral statute of limitations. ment is the owner of the original title.” It follows from this view that, if the tax The suggestion is made that this implies deed is in fact valid in all respects, the dethat the tax deed is invalid, since otherwise fendant is entitled to judgment, however her it would have extinguished the original title. present possession was acquired, since her Such an interpretation would extend the ad- earlier possession made her the absolute ownmission beyond its obvious meaning.

er of the property. If the deed is invalid upThe tax deed was issued and recorded on its face, she of course cannot recover, for March 31, 1899. The grantee at once oc- she then has no title. But as it may develop oupied the property and held it for four that the deed is apparently good, but is years. Such at least was the defendant's voidable for some latent defect, we are reevidence, and, as its truth does not seem to quired to decide the effect of that condition, have been challenged, we shall assume that under whatever changes of possession may the court believed it. In the spring of 1903 be shown at a new trial. Speaking of that the original owner (the plaintiff) obtained kind of a tax deed, if the land affected repossession which continued for more than mains vacant for five years after it has been two years. Then the tax title claimant (the recorded, and the patent title holder then defendant) acquired possession, which she takes possession, the tax title holder cannot maintained until the beginning of the action, maintain ejectment, for in that situation he November 24, 1908.

cannot invoke the benefit of the five-year [3] The plaintiff contends that, when he statute of limitations (Gen. St. 1909, $ 9483) took possession of the property in 1903, the to prevent an inquiry into the proceedings statute of limitations (Gen. St. 1909, $ 5608, back of his deed. Stump v. Burnett, 67 subd. 3) began to run in his favor; that in Kan. 589, 73 Pac. 894. The fact that the two years its bar become complete; and that tax title holder at one time had actual posthereupon the tax title was practically ex- session does not change the rule, if he lost tinguished, and its holder could neither it before the five years had expired. Inasmaintain ejectment, nor by taking physical much as the original owner can within five possession acquire a standing to resist such years successfully prosecute ejectment, it folan action when brought by the original own- lows that, if within that period he obtains er. This would doubtless be the rule if, be actual possession, he has only procured what tween the issuance of the tax deed and the the law would give him, and he can maintain taking of possession by the original owner, I 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 Inda xes

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