, 1892-05-21
FROM JEFFERSON.
An Order Vacating a Judment is
Set Aside.

tiOn Was without jurisdiction,
He Having Been Counsel for
One of the Parties.
[Notice-All decisions of the supreme
court will appear u The DAILY and WEEK
LY TRIBUNE.
The State of Washington on the relation of
Mary COugiu VS.. Morris B. Sachs, as
Judge of the superior court of Jefferson
county, respondent. No. 431.
This is proceeding by'certiorari to re-
view the action taken in the superior court
of Jefferson county in cause wherein the
relatOr was plaintiff and the Farmers and
Merchants Insurance company, incorpor-
pOrated, was defendant. 1t appears by.
the record herein that said action was
commenced in the district court of Jeffer-
son county, Washington territory, on the
9th day of July, 1885, that on the 18th day
day of August, 1889, Morris B. Sachs, esq.,.
appeared as attorney for the defendant and
filed a demurrer and motion for bill of
particulars. That afterwards at the cleo
ton held on the first Tuesday Of October
1889, the said Morris B. Sachs was elected
judge of the superior court for the cOun-
ties Of Jefferson and others, and that after
wards he duly qualified and entered upon
the discharge OF mis- duties as such Judge.
That w. f. Hays, esq, succeeded said
judge as attorney for said defendant, and
thereafter at the first term of court af-
ter his election said judge declined to pre-
side at the trial of said cause in conse-
quence Of his previous connection there
with as an attorney. That afterwards on
the 10Th day of September, 1890, the attor-
neys for said parties agreed to try the case
before a Judge pro tempOre, and agreed
upon one b. c. Johnson, ESQ.,, member
of the bar of this state, residing in Port
Townsend, which agreement was at said
time approved by Sachs, Judge, and said
approval entered upon the journal Of said
court.
That said judge pro tempore duly sub
scribed ana took the oath as by
statute provided, and on the 11th
day of December, $780, the said cause
was tried before him without jury. Both
parties were present in court, and no objec-
tion was made by either of them to the
judge pro tempOre. Judgment was rem
dered in favor c the plaintiff. Imme-
diately thereafter motion was made by
the defendant for new trial which was or
the 10th day of May, 1891, argued before
the judge pro tempOre by the attorneys fol
said parties, and denied. That on the
23rd day Of June, 1891, the defendant flee
motion to vacate the judgment rendered
in said cause on the ground that the Judge
pro tempOre was not qualified to act because
the parties had not signed an agreement
for his appointment, which motion Wai
based upon the records and files in tht
cause. Said motion came on to be hearC
on the 9th day Of June, 1891, and Withou
any previous lntimatiOn was brought VI
before Sachs, judge. The plaintiff objected
to such proceedings on the grounds tha
said judge was disqualified; that be haC
not jurisdiction and that said cause was
then pending before the judge pro tempore
But Notwithstanding such objections sale
judge proceeded to hear the argument OF
the motion, and made an order thereon
which reciting that lit appearing to the
court that the said judge pro tempOre wa.
not appointed by agreement in writing
signed by the parties, or their attorneys
and approved by the court" purported tC
Vacate and set aside the judgment.
No proof, or showing, was made upor
the hearing of the motion of anv matter,
other than those appearing of record il
said cause. But said ground was sus
talned because the record does not atfirma
lively show that the parties entered into /
written stipulation for the appointment O.
said judge pro tempOre. The statute, sec
ton IL, Sess. laws 1889-90, page 343, pro
Yldes that - case in the superior court O
any county may be tried by a Judge prC
tempore who must be a member Of the bar
agreed upon in writing by the parties liti
CANT, or their attorneys of record, ap
proved by the court, and sworn to try
the case" The matters with reference
to the appointment of the Judge DrC
journal entries made therein, but it is no
stated in any of them, nor does the recorC
here show In any way that the agreemen
aforesaid was submitted in writing. anC
the defendant contends that as it does no
appear that a written agreement for such
appointment had been entered into thai
the appointment OF the Judge pro tempOrl
was void, and that this was a matter which
could not be waived by the parties.
This view OF the proceedings cannot bt
sustained. The action of the court in va.
eating the judgment is invalid for severa
reasons. The presumption arising from
the journal entries is that a written stipu.
latiOn was entered into for theappointment
of the judge pro tempore, and this pre-
SUMPTION was not overcome in any Way
There is nothing in the record here show
ing as a matter of fact that such stipu-
latlon was not on file in the case when the
motion to Vacate was heard, No such pre-.
sumption can obtain from the bare recital
contained IN the order setting aside the
judgment to Overrule the presumption in
favor of the regularity of the prior pro-
ceedlngs, which are otherwise unuues-
toned. But whatever the facts were as to
SAID agreement having been in writing, the
defendant was precluded from making
such an attack. He was estOpped by his
action in appearing and trying the cause
before the judge pro tempOre without obiec-
ton, and could not be heard to raise the
question thereafter. The fact, if it is a
fact, that the agreement was not in writing
would not render the appointment void
under the clrCums tanCes, and a party must
seasonably object thereto to take any ad-
vantage thereof, and after having failed to
seasOnobly raise the question, no inquiry
into the fact will be permitted.
1t has been held in other states that a
statutory provision requiring such an agree
ment to be In Wrltlngmay be waived by the
parties
See Greenwood vs.. State, 116 Ind. 485.
Cargan VS.. Fee, 119 Ind. 536.
Freemen on Judgments, Sec. 148.
And there is no good reason for holding
otherwise. No question of public policy
can enter into the manner of the apDoint-
ment In such respect. The Statute in
question must be given reasonable inter
pretatlon, 1t can have effect where the
agreement is made out of court or preced-
ing the action Of appointment or approval
by the judge, and unless the agreement is
made or consent given in open court in
some manner it must be by a written stip-
ulauOn. In this case consent was given IN
open court and for that matter it was Dut
in writing at the time in the shane Of a
Journal entry, although, of course, it was
not signed by the parties or their attorneys.
Furthermore the judge who granted the
motion TO Yacate had no Jurisdiction in the
premises. He was disqualified from acting
therein by the provision contained in sub
division 4, sec. 80 of the code of 1881, pro-
Yiding that judge is disqualified when he
has been of counsel for either party. The
statute authorizes him to grant a change of
venue in such cases and his right to ap-
prove the agreement of the parties for the
appointment of judge pro tempore is not
questioned In this case, and there seems to
be no good reason why he should not be
allowed to approve thereof. The agree
ment Of the parties is the important mat
ter connected with such an appointment.
not the method by which the agreement is
evidenced, and if the party agreed upon
the approval of such an agreement
by the judge is rather matter
otherwise, of form than very like that of
directing a change Of venue where the
Judge is disqualified, No other objection
than the one specified was raised 10 tba