
    No. 19,397.
    Jennie D. Feichter, Appellant, v. Ernest E. Feichter, Appellee.
    
    SYLLABUS BY THE COURT.
    
      Trial — Absence of Judge During Arguments — Prejudicial Error. It is the duty of the judge of the district court to preside during the trial of ■ cases; and where, over the objections of one of the parties, he calls the' clerk to preside at the argument of a case and leaves the court room, a very slight showing of prejudice is sufficient to authorize a reversal of the judgment with direction to grant a new trial.
    Appeal from Decatur district court; William S. Langmade, judge.
    Opinion filed February 12, 1916.
    Reversed.
    Opinion denying a rehearing {post, p. 168), filed March 11, 1916. Reversal sustained.
    
      H. 0. Caster, of Oberlin, for the' appellant.
    
      J. P. Noble, of Oberlin, for the appellee.
   The opinion of the court was delivered by

Porter, J.:

This is an ordinary suit to foreclose a mortgage on real estate. The plaintiff is the wife of the defendant, but when the suit was filed they had separated. The husband answered, admitting the execution of the note and mortgage and alleging that they were given without any consideration. As a second defense the answer alleged that the parties were husband and wife and that the note and mortgage were given for and in contemplation of securing a divorce without any defense thereto, and are therefore void as against public policy. The cause was tried to a jury and a verdict returned in favor of the defendant. A motion for a new trial was overruled and plaintiff appeals.

Since the trial the court house burned and the stenographer’s notes were lost. Plaintiif has been unable to procure a transcript of the evidence. There are no errors assigned in plaintiff’s abstract; but in the brief complaint is made that the trial court committed an abuse of discretion which prevented plaintiff having a fair trial. The abstract contains this statement:

“Just prior to the argument to the jury the court called upon the clerk of the district court to preside and keep time at the argumerits, saying that he had himself some other matters to attend to. Whereupon, the appellant objected to the court’s leaving the room and objected to anyone else presiding except the judge himself, saying that considerable irrelevant matter had leaked in during the trial of the case and that he feared that the argument would not be confined to the testimony. The court jokingly replied that he did not think that if he remained he would be able to keep attorneys for either side within the testimony, and left the court room and remained absent during the arguments.”

It is further stated in the abstract that during the. argument the jury were told by counsel for the defendant that the plaintiff was of bad moral character, and that this statement was made notwithstanding that depositions offered by the defendant for the sole purpose of attacking the personal and moral character of the plaintiff had been rejected by the court as incompetent and irrelevant. Some of the facts contained in plaintiff’s abstract as to what occurred are denied by the defendant in a counter-abstract, in which it is asserted that the judge remained in the court room during the argument to the jury of courisel for plaintiff.

We think the record discloses prejudicial error. A party has a right to complain of the action of a judge in calling the clerk to preside at a trial and leaving the court room. This ought to be the rule in any lawsuit; and it certainly applies to a case that has been warmly contested and where prejudice is likely to result from statements outside the record made during arguments. Apparently enough had already transpired to satisfy the judge that he would have difficulty in confining, the árguments of counsel to the real issues in the case. The plaintiff objected to the action of the judge in turning the business of the court over to the clerk, and it ought not to require very much of a showing of prejudice to authorize a new trial. There are several things in conection with this case that satisfy us that plaintiff was denied a fair trial.

In a criminal case (The State v. Beuerman, 59 Kan. 586, 53 Pac. 874) it was said in the opinion:

“The absence of the judge during the progress of a trial can not be sanctioned. The argument of a cause is an important part of the trial, and it is essential that it should be conducted in the presence and hearing of the judge who must ultimately approve the proceedings and render judgment. The hearing and conduct of the argument is almost, if not quite, as important as the hearing and reception of testimony; and the judge should be present to see that counsel in their arguments do not go beyond the bounds of legitimate discussion and to determine any objections that may be raised. In fact, there can be no court without a judge, and he can not even temporarily relinquish control of the court or the conduct of the trial. It is necessary that he should hear all that transpires in the trial in order that he may intelligently review the proceedings upon the motion for a new trial.” (p. 591.)

The judgment is reversed and a new trial ordered.

OPINION DENYING A REHEARING.

The opinion of the court was delivered by

Porter, J.:

In an application for rehearing it is insisted that the decision reversing the judgment was predicated upon a misunderstanding of the facts. It is said that each side was given one hour for argument, that the judge was present during about one-half of the opening argument of the defendant, who had the burden of proof, and that the judge then called a member of the bar tt> preside and left the court room, that he returned before the plaintiff finished speaking and presided all the time during defendant’s closing argument. Our attention is also called to the fact that the courthouse was not burned, and that the stenographer’s notes were lost in a fire that occurred at some other place.

Whether, as plaintiff contended, it was the clerk who was called to preside during the absence of the trial judge or some one else, as defendant contends, makes no difference. The decision was rested upon the wholesome doctrine declared in The State v. Beuerman, 59 Kan. 586, 53 Pac. 874, cited in the opinion, that the absence of the trial judge during the argument of a cause can not be sustained. Historically, it is important to know that the courthouse was not burned.

Rehearing denied.

Filed May 13, 1916.  