#### YOUNGBLOOD, et al., Plaintiffs, v. GRAND LODGE OF THE ANCIENT ORDER OF UNITED WORKMEN OF SOUTH DAKOTA, Defendant.

(183 N. W. 545.)

(File No. 4910.

Opinion filed June 23, 1921.)

1. Appeals — Settling Recoi’d, Authority oí Trial Judge’s Successor, Basis of Under Supreme Court Order or Buie.

It is settled law of this state that the successor in office of a trial judge has no authority to settle a record of a trial had before his .predecessor, except as such authority is given by order or rule of the Supreme 'Court.

2. Same — Nunc Pro Tunc Order, Jurisdiction of Supreme Court To Malee, Referred to Effective Date of Order — Noiurefusal of Qualified Resident Judge Below to Settle Record, Ground for Non-action by Supreme Court.

The Supreme Court would have no jurisdiction to make any nunc pro tunc order authorizing a trial judge to settle a record unless, on thel date of which the order is to be effective, there exists in the former Court jurisdiction to have then made the order, such jurisdiction being based upon Sec. 2553, .Code 1919, providing that a judge may settle a record after as well as before he ceases to be such judge, and that in the exigencies therein specified the 'Supreme Court may, by rule or order, *246direct the maimer of settlement; and held, that, the successor to the trial judge being still living, a resident of this state and fuly qualified to settle said record, and it not appearing that he has refused to do so, Supreme 'Court has not and would not have at time of purported settlement of the record, authority to make any such rule or order.

Original application by Louise E. Youngblood and others, plaintiffs, for an order nunc pro tunc, authorizing Judge Medin, as successor in offiice of Joseph W. Jones as judge of the circuit court, to settle the record in said cause; the Grand Lodge of the Ancient Order of United Workmen of South Dakota, a corporation, being defendant.

Order refused.

*Teigen &*Davis, for Plaintiffs.

*W. F.*Mason, for Defendant.

WHITING, J.

This action was tried before Hon. Joseph W. Jones, judge of the circuit court. Immediately before he retired from such office, Judge Jones filed findings, conclusion, and judgment Jherein. The plaintiffs, desiring to- procure a settled record, served and filed a transcript of evidence and specifications of errors; and, no amendments being proposed, they thereafter procured from' Pión. John T. Medin, successor of the said Joseph W. Jones as judge of such circuit court, a certificate purporting to settle the record in said cause. Plaintiffs, -being now of the opinion that Judge Medin was without authority to settle scuh record, have applied to this court for an order nunc pro time, as of the 31st day of -December, 1919, authorizing Judge Medin to settle the record in this action, and confirming his act in settling such record.

[1,2] It is the settled law of this state that the successor in office of a trial judge has no authority to settle a record of a trial had before his predecessor, except as such authority may be given him by some order or rule of this court. Northwestern Port Huron Co. v. Zickrick, 22 S. D. 89, 115 N. W. 525; First National Bank v. Cranmer, 42 S. D. 404, 175 N. W. 881. This court would have no jurisdiction at this time to make any nunc pro tunc order, unless, upon the date as of which the order is to be effective, there existed in this court jurisdiction to have then made the order. The jurisdiction of this court to make an order authorizing Judge Medin to settle a record herein is to be found in section 2553, Revised Code 1919. This section provides that a *247judge may settle a record after as well as before he ceases to be such judge; and then provides that, in case of the death of a judge, or his removal from office, or his becoming disqualified or absent from the state, or refusal to settle the record, that this court may, by rule or order, direct the manner of the settlement of a record. Judge Jones is still living, is a resident of this state, is fully qualified to settle the record in this case and it do.es not appear that he has refused to do so. This court has not now, and did not have at the time of the purported settlement of the record herein, any authority to make any rule or order for the settling of the record herein.

The order prayed for is refused.