M. A. CLARKE, PLAINTIFF AND APPELLANT, VS. MANILA CANDY COMPANY, DEFENDANT AND APPELLEE.

The record in this case discloses that the trial in the court below was
presided over by the Honorable Frank B. Ingersoll, who appears to have been
selected by counsel to act as a special judge.

Jurisdiction to hear and determine actions pending in Courts of First
Instance as a special judge selected by counsel can only be acquired under
authority of and in strict conformity with the provisions of section 378 of the
Code of Civil Procedure. That section is as follows:

“Special judge by agreement of parties when judge disqualified.—If
the judge of a Court of First Instance should be disqualified, as in this Code
provided, to sit in any action, the parties may, in writing, to be filed with
the clerk, select some member of the bar as a special judge, and thereupon the
judge shall retire from the bench for the time, after directing an entry of the
substitution upon the docket, and the special judge so selected shall take his
place and hear and determine the action, and make all necessary orders, decrees
and judgments therein, as if he had been the regular judge; and the records,
minutes, and proceedings shall be, and appear in all respects, as if the cause
had been heard and determined before the judge.”

No order directing the entry of the substitution of a special judge having
been included in the record in this case as originally submitted to us, the
parties were given an opportunity to perfect the record in this regard.
There-after a writing, purporting to be a nunc pro tunc order was filed
with the record in this court, of which the following is a copy:

“Whereas the defendant in the above-entitled action has challenged the
competency of the judge presiding in this branch of the Court of First Instance
of the city of Manila in that said judge has presided in the case of the United
States vs. D. M. Stewart et al., involving the subject matter of the
above-entitled action, and has rendered a ruling and decision therein which is
the subject of review in the above-entitled cause; and

“Whereas the plaintiff in the above-entitled action has caused it to appear
to the satisfaction of this court that the counsel chosen to represent said
plaintiff in the above-entitled action is persona non grata in the
remaining civil branch of this Court of First Instance of the city of Manila;
and

“Whereas the respective parties in the above-entitled cause have mutually
stipulated and agreed in writing that the said judges of the Court of First
Instance of the city of Manila are and of them is disqualified to sit in said
action, and have selected and named Frank B. Ingersoll, esq., a duly qualified
member of the bar of this court, as a special judge to take the place of said
judges in said cause, and to hear and determine said action, and to make all
necessary orders, decrees, and judgments therein, to prepare and certify all
bills of exception for appeal therefrom, as if he had been the regular judge of
said court, all in accordance with section 378 of the Code of Civil
Procedure;

“Now, therefore, good cause appearing therefor, it is hereby ordered and
decreed that there be entered upon the docket of this court the substitution of
said Frank B. Ingersoll, esq., in place and instead of the undersigned judge of
said court, and in accordance therewith the undersigned judge does hereby
temporarily retire from the bench of said court for the time that the
above-entitled cause may be on trial and hearing.

	“Given and made at Manila, P. I., this 4th day of December, 1913, as and for the 1st day of August, 1912.
				“A. S. CROSSFIELD,
			“Judge of the Court of First Instance of
				the city of Manila.”

 

But even if the omission of the filing of an order directing the entry of
substitution before the special judge assumed jurisdiction could be cured by the
entry of a nunc pro tune order, a point which we do not now consider, it is
manifest that the alleged disqualifications of the judges of the Court of First
Instance of Manila were not such as to justify the selection of a special judge
under the provisions of section 378 of the Code. Under that section it is only
where the regular judge is disqualified “as in this Code provided,’ (that is to
say, as provided in the Code of Civil Procedure) that the selection of a special
judge is authorized. The cases of disqualification of judges expressly provided
in the Code are set forth in section 8 thereof. The alleged disqualification of,
the judges of the Court of First Instance of Manila, as set forth in the
above-cited order, is not included in the cases of disqualification mentioned in
that section, and it manifestly follows, that the selection and substitution of
a special judge in this case was without authority of law and conferred no
jurisdiction upon him to hear and determine the action.

The judgment entered in the court below should therefore be reversed, without
costs to either party, and the record remanded for a new trial. So ordered.

Arellano, C. J., Moreland, Trent, and Araullo, JJ.,
concur.