was never approved by the Compensation, ment was void, as we were without jurisdicBoard, it was void. Does it follow that the tion to enter it. The order or judgment beorder of "dismissal settled" entered in this ing void, the petitioner clearly had the right court in the first appeal from the Harlan to bring this proceeding to have it set aside. circuit court was void, or was it simply er- A void judgment may be set aside even by moroneous? tion at a succeeding term. As said in Hughes v. Saffell, 134 Ky. 175, 119 S. W. 804:

(288 S.W.)

Wherefore the order of this court entered in action No. 50901, on the 17th day of September, 1924, dismissing that action settled, is set aside and held for naught; that action is now restored to the docket of this court, and the petitioner is awarded his costs herein expended.

circuit court to set aside the judgment af- DRURY, C. Mullins sought by this action firming the award of the board on the ground to vacate a judgment obtained against him by that the award had been procured by the peti- the appellants, whom we shall refer to as the tioner through fraud, the respondent chose Colemans. He was successful, and the Colethe wrong forum. Though the Harlan circuit mans have appealed. In July, 1920, the Cole court might have considered such a question mans leased to J. H. McBrayer a tract of of fraud had the respondent known of it and land in Pike county for the mining of coal. presented it on the court's consideration of McBrayer paid a royalty of $500 for the first the appeal from the award of the board (Ken- year, and was to pay minimum royalties of tucky Statutes, § 4935), that court had no ju- $1,500 for the second year, and $2,400 for risdiction, after deciding such appeal without each year thereafter, to secure which the that question present, to entertain a new suit | Colemans had a lien on the property. In to try such question. Section 4902 provides September, 1920, McBrayer transferred to the that such a proceeding must be instituted be- Elkhorn Coleman Coal Company, a corporafore the board and in a proper state of case; tion, all of his rights under this lease. This an appeal may be then prosecuted from its corporation was organized by Paris Mullins, judgment to the circuit court. This remedy J. H. McBrayer, D. S. Ramsey, D. S. Underis yet open to the respondent, if it still wish- wood, and J. W. Childers. Each of these es, to question the former award of the board men subscribed for $6,000 of capital stock of affirmed by the Harlan circuit court, since the the corporation. This $30,000 was, it appears, compensable period has not yet expired. expended on the property in its development, but shortly thereafter the market price of coal became so low that the corporation was unable to operate at a profit. It was unable to pay the royalty due, and had given to the Boone Coal Sales Company a mortgage for $10,000 upon its property. The Colemans, on February 25, 1922, filed a suit in the Pike circuit court against this corporation, the holder of this $10,000 mortgage, and each of these stockholders, except Childers. Process was served on Mullins, but he did not answer the suit, because, as he says in this suit, he supposed then that this process was served upon him as an officer of the Elkhorn Coleman Coal Company for the purpose of bringing that corporation before the court, and that he did not then know or suspect that a judgment was being sought against him personally, and hence he filed no answer. This petition was filed by Hon. J. E. Childers, who was then, and had been since the first of the year, judge of the Pike Circuit Court. Judge Childers, at the time of his election, had been actively engaged in the practice of law, and there was then pending in the Pike circuit court 5 commonwealth cases and 28 civil cases wherein he was interested, and on December 7, 1921, the Governor issued to Hon. Henry R. Prewett a commission as special Judge to try those

Whole court sitting.

COLEMAN et al. v. MULLINS. (Court of Appeals of Kentucky. Nov. 26, 1926.)

1. Judges 25(1)-Special judge appointed to try certain cases held to have no jurisdiction to try any case not named in order appointing him.

Special judge appointed to try cases in which regular judge was interested, held to have no jurisdiction to hear or determine any case not named in order appointing him, since his entire jurisdiction was to be found within that appointment:

2. Judgment ~9.

Where special judge tried case not named in order appointing him, and defendant did not consent to his trying it, judgment was void.

3. Pleading 214(1).

cases.

On March 3, 1924, Judge Prewett appeared in the Pike circuit court and presented his

Petition on demurrer must be taken as true. commission, which, together with the list of

cases he was to try, was spread upon the order book of the court. This suit of the Cole

Appeal from Circuit Court, Pike County. Action by Paris Mullins to vacate a judg-mans against the Elkhorn Coleman Coal Comment obtained against him by J. M. Coleman and others. Judgment was vacated, and respondents appeal. Affirmed.

pany and others was not named as one of for by the fact that this appointment of Judge these 33 cases, which is probably accounted Prewett had been made about three months Moore & Childers, of Pikeville, for appel- before the suit was filed; but the Colemans lants. appear to have overlooked that, and on March Picklesimer & Steele, of Pikeville, for ap- 6, 1924, this cause was, on motion of the Colepellee. mans, submitted to Judge Prewett, and, the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[3] The Colemans offered no pleading other than a demurrer questioning the right of Mullins to relief sought. His petition, which upon demurrer must be taken as true, manifested his right to relief, and it follows that the action of the trial court in awarding him the relief sought was correct, and its judgment is affirmed.

petition being uncontroverted, he entered a, Wyatt's Trustee v. Grider, 158 Ky. 440, 165 S. judgment against all of the defendants except W. 420. the Boone Coal Sales Company for $4,850, and adjudged to the Colemans a lien to secure this upon the property of the Elkhorn Coleman Coal Company. That judgment was entered in order book 24, p. 160. The Colemans enforced their lien, and the property of the Elkhorn Coleman Coal Company was sold, and they bought it for $500. This sum they credited upon their judgment, and issued an execution for the remaining $4,350, whereupon Mullins began this action in equity reciting all these facts and asking to have the judg ment in book 24, p. 160, vacated as far as it affected him. The Colemans filed a demurrer to the petition, which was overruled, and they declined to plead further. Thereupon the court entered a judgment canceling and vacating the judgment in order book 24, p. 160, in so far as it affected Mullins personally,. and from that judgment the Colemans have appealed.

[1, 2] The reason for the selection of Judge Prewett as special judge was that he might try those 33 cases, and, accordingly, there was spread on order book 24, at page 154 of the Pike circuit court, Judge Prewett's appointment and the list of cases that he was to try. Judge Prewett had no jurisdiction to hear or determine any matter unless it was embraced within the terms of his appointment. His entire jurisdiction must be found within that appointment, and he had no jurisdiction to try any case not named in the order appointing him. The case 'begun by the Colemans against the Elkhorn Coleman Coal Company was not one of those cases. Mullins had not consented for Judge Prewett to try it, did not know he was going to do so, and Judge Prewett had no authority to enter a judgment in this case.

THOMPSON et al. v. FIRST STATE BANK
OF IRVINGTON.

(Court of Appeals of Kentucky. Nov. 23, 1926.)

Banks and banking 142-Bank cashing for payee check, void as given for gambling debt, could recover from payee (Ky. St. § 1955).

Where payee of check given for gambling debt cashed it before payment was stopped, bank cashing it was entitled to recover amount from payee, Ky. St. § 1955, making such checks void. 2. Banks and banking 126-Bank crediting check, void as given for gambling debt, could recover from payee drawing out proceeds (Ky. St. § 1955).

Where payee of check, void under Ky. St. § 1955, as given for gambling debt, deposited check with plaintiff bank and drew out proceeds, upon payment being stopped by drawer at drawee bank, plaintiff bank could amount paid from payee.

recover

3. Banks and banking 142-Evidence of collusion between depositor of void check and person cashing check on depositor's account held insufficient to entitle bank to recover from both (Ky. St. § 1955).

Evidence of collusion between the payee of a check, void under Ky. St. § 1955, and person void check had been deposited, held insufficient. who cashed check on payee's account, in which to entitle bank to recover amount of void check, payment on which had been stopped, from person cashing check on payee's account.

"A judgment void upon its face and requiring only an inspection of the record to demonstrate its invalidity is a mere nullity, in legal effect no judgment at all, conferring no right and affording no justification. Nothing can be acquired or lost by it. It neither bestows nor extinguishes any right, and may be successfully assailed whenever it is offered as a foundation for the assertion of any claim or title." Freeman on Judgments, § 338. "If * the record shows what was done toward acquiring jurisdiction nothing else will be presumed to have been done, and hence if from what appears by the record it is clear that jurisdiction is not established the subse-wise, reversed, with directions to dismiss. quent action of the court may be disregarded as void." Freeman on Void Judicial Sales, § 8.

Appeal from Circuit Court, Breckinridge County.

The order or judgment being void, Mullins clearly had the right to bring this proceeding to have it set aside.

See Stewart v. Model Coal Co., 288 S. W. 696, decided Nov. 26, 1926, and Hughes v. Saffell, 134 Ky. 175, 119 S. W. 804. See, also,

Action by the First State Bank of Irvington against Frank Thompson and others. Judgment for plaintiff, and the named defendant and another appeal. Judgment affirmed as to the named defendant; other

Gus Brown, of Hardinsburg, for appellants. A. R. Kincheloe, of Hardinsburg, for appellee.

SANDIDGE, C. In a game of "stud poker," so called, by the witnesses, which the parties seem to agree was a game of chance, Murray Butler lost $675 to appellant F. M. Thompson. He gave Thompson two checks

(288 S.W.)

in settlement, one for $600, and the other for ler's losses to him in a game of chance. Alex$75. The checks were drawn against But- ander & Company v. Hazelrigg, 123 Ky. 677, ler's account with the Bank of Hardinsburg 97 S. W. 353, 29 Ky. Law Rep. 1212; Cochran & Trust Company, of Hardinsburg, Ky. v. German Insurance Bank, 9 Ky. Law Rep. Thompson cashed the $75 check and took 196; Farmers' & Drovers' Bank of Louiscredit by the $600 check at the First State ville v. Unser, 13 Ky. Law Rep. 966; DoerBank of Irvington, appellee herein. Later, on hoefer's Ex'r, 188 Ky. 413, 222 S. W. 515, 11 the same day, he gave appellant William A. L. R. 207; and Bohon's Assignee v. Brown, Tobin a check for $600 against his account 101 Ky. 354, 41 S. W. 273, 19 Ky. Law Rep. with appellee bank, who presented it for pay- 540, 38 L. R. A. 503, 72 Am. St. Rep. 420, ment and received $600 in cash on it. It cases involving gambling transactions and is immaterial what efforts were used by ap- construing the statute, supra, are cited and pellee bank to ascertain whether the Butler relied upon by him. Those cases, however, go checks drawn on the Bank of Hardinsburg & no further than to establish that checks, Trust Company were good and would be paid notes, or other commercial paper growing when presented, before it cashed the $75 out of gambling transactions are void under check for Thompson and credited his account the statute and cannot be enforced against with the $600 check, and before it paid the maker, though in the hands of an innoThompson's $600 check to Tobin, because no cent purchaser. The statute above and those appeal has been prosecuted by appellee bank and other cases construing it were the aufrom the judgment of the trial court absolv-thority for Butler, who gave the two checks ing the Bank of Hardinsburg & Trust Com- to appellant Thompson, to stop payment on pany from liability herein. Before the checks them, since they were drawn by him in setgiven by Butler to Thompson were presented tlement of his losses in a game of chance. for payment to the bank on which they were Those cases, construing the statute, supra, do drawn, he had notified it not to pay them, as not announce the doctrine that, if a payee they were given to cover his losses in a game has obtained cash or credit from an innocent of chance; and, when presented, they were purchaser upon paper so declared void, dishonored and protested. This action was where, upon presentation, the maker under thereupon instituted by appellee, First State authority of the statute refuses payment, Bank of Irvington, to recover from F. M. such innocent purchaser may not recover Thompson the $75 it had paid him in cash on from the payee what he had paid to him. the Butler check for that amount, and from It would be a strange doctrine, indeed, to hold F. M. Thompson and William Tobin the $600 that one winning money in a game of chance it had paid to the latter on Thompson's and receiving a check in settlement, who check drawn, delivered, presented, and paid, obtains credit or cash on the check at his as above indicated. By the action appellee bank, would not be liable to the bank, if, also sought to recover from the Bank of when presented for payment to the bank on Hardinsburg & Trust Company the full which drawn, the check should be dishonored. amount of the two checks which were pro- The check being void under the statute tested by it for nonpayment when presented. above, appellant Thompson is in no better However, for the reason above indicated, position than if he had obtained credit by that feature of the case need be given no depositing $675, with appellee bank, in curfurther attention. Defenses were interposed rency afterwards ascertained to be counterby both Thompson and Tobin, and, upon the feit, or if the check on Butler had been trial below, the chancellor adjudged that ap- forged by him. Unquestionably, the chancelpellee recover of appellants, F. M. Thompson lor correctly adjudged that appellee bank reand William Tobin, $600, with interest and cover from appellant Thompson the full cost, and from appellant, F. M. Thompson, the amount of the two checks, together with the sum of $75 and $4.58, protest fees. This ap- protest fees and interest and cost. peal is prosecuted by both Thompson and Tobin from that judgment.

[1, 2] With reference to the contentions of appellant F. M. Thompson but little need be said. Relying upon section 1955, Kentucky Statutes, which provides that all contracts, conveyances, transfers, or assurances for the consideration, in whole or in part, of money, property, or other thing won, lost, or bet in any game, sport, pastime, or wager shall be void, and numerous opinions of this court construing and upholding the statute, it is insisted for appellant Thompson that appellee bank could not recover from him the $675 obtained by him from it on the two Butler checks because they were given to him to settle But

[3] The appeal, so far as appellant Tobin is concerned, presents a more difficult question. Tobin was no party to the game of chance or to the transaction involved in either of the checks given by Butler, made void under the statute, supra. Appellee bank gave appellant Thompson credit by the $600 check. Thompson subsequently gave appellant, Tobin, a check for that amount drawn against his account with appellee bank. That check was presented for payment in due course and was paid in cash to appellant Tobin. The check, which, he presented, and which appellee paid, was not given, either wholly or in part, for any of the considerations which, under section 1955, supra, Ken

tucky Statutes, would have rendered it void. I not. They both testified that the check was Appellee insists and the chancellor seems to drawn in that way and that Tobin cashed it, have concluded that the record affords sufficient evidence that Thompson's giving Tobin the check, and Tobin's presenting it for and receiving payment of it was a fraudulent scheme resorted to to enable Thompson to obtain the money on the void gambling check. It may be assumed that Thompson desired to obtain the money before Butler's checks were presented for payment to the bank on which they were drawn, lest, when presented, they be dishonored.

returned to his place of business, deducted the amount of his account, and paid appellant Thompson the difference. No other fact or circumstance appearing in the record tends, in the least, to establish that Tobin's connection with the transaction was collusive or was had by him to the fraudulent end that appellant Thompson might obtain the cash on the $600 Butler check. We are constrained to hold that the circumstances appearing herein under which the check Appellant Tobin appears to be a merchant was given to, presented, and collected by apin a village some four miles from Irvington, pellant Tobin are not sufficient to establish where appellee bank is located. They both fraudulent collusion upon his part to enable testified as to how it occurred that the $600 appellant Thompson to collect the vold gamcheck was given to him, and no other testi- bling check. The transaction between appelmony on the subject appears in the record. lant Tobin and appellee bank was closed They stated that Thompson entered Tobin's when he presented for payment the $600 place of business and was requested to settle check drawn by Thompson, and received the a small amount owing by him. Thompson cash on it. As between them, by paying that stated that he had $600 on deposit with ap-check the bank assumed full responsibility pellee bank and owed other debts beside that for the validity of the Butler check for $600, to Tobin, which he wanted to pay. He told proceeds of which had been credited by it to Tobin that he would give him a check for the Thompson's account. full $600, if the latter would go to the bank and cash the check. He would then pay Tobin the amount of his account and would have cash with which to settle his other debts. Tobin owned a car in which the trip to the bank could be made. Thompson did

For the reasons indicated, the judgment herein against appellant Thompson is affirmed; and the judgment against appellant Tobin is reversed, with direction that judg ment dismissing the petition herein as to him be entered.