Farm Bureau Policy Holders and Members, Dennis Lee, Class Representative v. Farm Bureau Mutual Insurance Company of Arkansas, Inc. and Southern Farm Bureau Casualty Insurance Company

FARM BUREAU POLICYHOLDERS and MEMBERS, Dennis
Lee, Class Representative v. FARM BUREAU
MUTUAL INSURANCE COMPANY of ARKANSAS, INC.,
and Southern Farm Bureau Casualty Insurance
Company, Inc.

97-1028                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 23, 1997


1.   Judges -- de facto judges -- defined. -- A de facto judge is
     one who occupies a judicial office under some color of right,
     who exercises the duties of the judicial office under color of
     authority pursuant to an appointment or election thereto, and
     for the time being performs those duties with public
     acquiescence, though having no right in fact because the
     judge's actual authority suffers from some procedural defect.

2.   Judges -- validation of acts of de facto judges -- doctrine of
     de facto officials extended to courts. -- The rule governing
     validation of acts of de facto officials is based upon public
     policy and is founded in comparative necessity; the doctrine
     rests upon principles of protection of the public and third
     parties and was engrafted upon the law as a matter of policy
     and necessity to protect the interest of the public and
     individuals involved in the acts of persons performing the
     duties of an official without actually being one in law; the
     doctrine of de facto officials has been extended to the courts
     based upon the fact that such courts are authorized by law,
     even when defectively done.

3.   Judges -- judge duly qualified chancellor at time order signed
     -- judge was de facto judge when he ruled on motion for
     extension of time -- ruling held effective. -- Where the
     original judge's term expired and the next judge to receive
     the assignment recused, the original trial judge's ruling on
     the motion for extension of time was found to be effective,
     despite the fact that the case was no longer officially
     assigned to him; the judge was a de facto judge when he ruled
     upon the motion for an extension of time; although his
     authority over the case at hand was defective, he was a duly
     authorized chancellor; in the interest of public policy, his
     ruling was held effective, and appellees' motion to dismiss
     was denied.


     Motion to dismiss appeal; denied.
     Gibson Law Office, by:  Charles S. Gibson, for appellants.
     Friday, Eldredge & Clark, by:  Robert S. Shafer and William A.
Waddell, Jr., for appellees.

     Per Curiam.
     Appellees Farm Bureau Mutual Insurance Company, Inc., and
Southern Farm Bureau Casualty Insurance Company, Inc., have moved
to dismiss the appellantþs appeal.  The basis of this motion is
the contention that Judge Lawrence Dawson did not have the
authority to extend the time for filing the record on appeal.
     Judge Dawson was assigned this case on April 4, 1994, after
the recusal of the other chancellors in Chicot County.  The case
was tried and Judge Dawson entered a decree on December 31, 1996,
finding in favor of appellees and dismissing appellantsþ
complaint with prejudice.  Judge Dawsonþs term of office expired
on December 31, 1996.  On January 23, 1997, Judge Dawsonþs
assignment was terminated and Judge Jim Gunter was assigned to
preside in the case.  On January 28, 1997, Judge Gunter notified
the administrative office of the courts that he must recuse.  On
February 12, 1997, the assignment of Judge Gunter was terminated.
     Appellantsþ motion for new trial was not acted upon and was
deemed denied by operation  of law on February 10, 1997.  On
February 21, 1997, appellants timely filed notice of appeal and
designation of record.  On March 31, 1997, appellants timely
moved for an extension of time to lodge the record of appeal;
this motion was granted and signed by Judge Dawson on April 7,
1997. The order was filed on April 9, 1997;  Judge Dawson
extended the time to lodge the record on appeal to September 21,
1997.  Appellant filed the record with this court on September 4,
1997.
     Appellees contend that Judge Dawson had no authority to
enter the order extending time to lodge the record on appeal. 
Based upon this lack of authority, appellees claim that such
filing of the record is outside of time prescribed by Rule 5(a)
of the Arkansas Rules of Appellate Procedure--Civil and is
untimely.
     On February 27, 1997, pursuant to Act 274 of General
Assembly, Governor Mike Huckabee appointed Judge Dawson
Chancellor of the Fifth Division of the Chancery Court of the
Eleventh Judicial Circuit-West for a two-year term expiring on
December 31, 1998.  Section (d) of the Act provides that said
Chancellor þmay be assigned to any and all . . . chancery
circuits of the State of Arkansas where the local chancellor or
chancellors have recused or have been disqualified.þ
     Judge Dawson was the original trial judge in this case and
was a duly qualified chancellor at the time he signed the order
of April 7, 1997, despite the fact that the case was not
officially assigned to him.  Judge Dawson was a de facto judge on
that date.  American Jurisprudence defines a de facto judge as
follows:
     A de facto judge may be defined as one who occupies a
     judicial office under some color of right, who
     exercises the duties of the judicial office under color
     of authority pursuant to an appointment or election
     thereto, and for the time being performs those duties
     with public acquiescence, though having no right in
     fact, because the judgeþs actual authority suffers from
     some procedural defect. 

46 Am. Jur. 2d Judges  242 (1994).

     The rule governing validation of acts of de facto officials
is based upon public policy, and its origin and history show it
is founded in comparative necessity.  Landthrip v. City of Beebe,
268 Ark. 45, 593 S.W.2d 458 (1980), citing Adams v. Lindell, 5
Mo. App. 197 (1878).  The doctrine rest upon principles of
protection of the public and third parties, and was engrafted
upon the law as a matter of policy and necessity to protect the
interest of the public and individuals involved in the acts of
persons performing the duties of an official without actually
being one in law. Landthrip v. City of Beebe, supra, citations
omitted.  See also, Chronister v. State, 55 Ark App. 93, 931 S.W.2d 444 (1996).  In Landthrip v. City of Beebe, this court
extended the doctrine of de facto officials to the courts based
upon the fact that such courts are authorized by law, even when
defectively done.
     In the case before us, a time existed where no judge was
formally assigned to this case.  Judge Dawsonþs jurisdiction
would have continued had his term not expired.  Judge Gunterþs
recusal left this case without a presiding judicial officer;
therefore, as a matter of law, motions were denied by the absence
of a timely ruling.  We conclude that Judge Dawson was a de facto
judge when he ruled upon the motion for an extension of time. 
Although his authority over the case at hand was defective, he
was a duly authorized chancellor.  In the interest of public
policy, we hold that his ruling is effective,  and the appellees
motion to dismiss is denied.
     Glaze and Corbin, JJ., not participating.