EDEN v. BEAMAN

EDEN v. BEAMAN
1934 OK 45
30 P.2d 899
167 Okla. 525
Case Number: 21947
Decided: 01/30/1934
Supreme Court of Oklahoma

EDEN
v.
BEAMAN.

Syllabus by the Court

¶0 Under section 4199, O. S. 1931, a county judge is disqualified from practicing as an attorney at law; however, such disqualification may be waived by the opposing parties by their conduct, and, if the litigants desire to take advantage of this statute, they must do so at or during the progress of the trial and not wait until an adverse verdict is returned against them and then for the first time urge this objection upon appeal.

Appeal from District Court, Cimarron County; F. Hiner Dale, Judge.

M. E. Becker, of Boise City, for plaintiff in error.
Ross Rizley, of Guymon, for defendant in error.

BAYLESS, Justice.

¶1 M. T. Beaman, plaintiff below, recovered judgment in the district court of Cimarron county, Okl., by a verdict of a jury against O. W. Eden, defendant below. O. W. Eden appealed.

¶2 The petition in error specifies six assignments of error, but the defendant says in his brief: "Owing to the peculiar circumstances involved in the case at bar, it is neither necessary nor expedient to submit authorities or to argue any assignments of error save and except paragraphs numbered Five (5) and Six (6), of the Petition in Error, herein, to-wit: 'The Court erred in failing to take judicial notice of the disqualification of I. E. Hill, County Judge of Cimarron County, Oklahoma, who appeared therein as attorney for defendant in error, from appearing in any court of record in this State for any litigant, unless said cause was pending prior to his taking the oath of office as such County Judge.' And, 'The Court erred in permitting said cause to proceed to trial for the reason that defendant in error was not represented by an attorney at law, as required by law."' This is the only question argued and the only one we will notice.

¶3 We have heretofore held that a district judge (Lilly v. State, 7 Okl. Cr. 284,

¶4 By the provisions of article 7, § 11, of the Constitution of the state of Oklahoma, the county courts of the state of Oklahoma are courts of record, and among the requisite qualifications for holding the office of county judge is that of being a lawyer. Section 4199, O. S. 1931, provides: "No person shall practice as an attorney and counselor at law * * * who holds a commission as judge of any court of record. * * *"

¶5 Under the provisions of this section of the statutes, the Constitution of the state of Oklahoma, and by the analogy of the case supra applying to district judges, we hold that a county judge is likewise disqualified to practice law, and is subject to the same objection on the part of the opposing party.

¶6 However, we find that we have held in Alexander v. Smith,

¶7 What we said in the case of Alexander v. Smith, supra, when we quoted from the case of Kelly v. Roetzel,

¶8 What we have just previously said is applicable to the defendant. We do not intend for our opinion in this case to condone the acts of those prohibited by section 4199, O. S. 1931, in practicing law.

¶9 This being the only error presented and argued, all others having been abandoned, the judgment of the trial court is affirmed.

¶10 We note from the brief of the defendant in error that he asks, in addition to affirmance of the judgment, judgment against J. E. Barbour and W. S. Spence, sureties upon the supersedeas bond herein; and, acting upon this motion and the affirmance of the judgment of the trial court, judgment is accordingly rendered upon the supersedeas bond against J. E. Barbour and W. S. Spence, sureties thereon, for the amount of $404.02, together with interest thereon at 6 per cent. per annum from June 19, 1930, until paid, and all costs of the action; and the district court of Cimarron county is directed to enter judgment in accordance herewith upon its record and to permit plaintiff to have his relief thereon.