Rogers v. Beauchamp

Decision Date16 May 1885
Docket Number11,062
Citation1 N.E. 185,102 Ind. 33
PartiesRogers v. Beauchamp et al
CourtIndiana Supreme Court

From the Vigo Superior Court.

The judgment is affirmed with costs.

S. C Stimson, R. B. Stimson and R. Dunnigan, for appellant.

J. W Shelton, for appellees.

OPINION

Howk J.

The only error assigned by the appellant, the plaintiff below upon the record of this cause, is the sustaining of the defendants' demurrer, for the want of sufficient facts, to his complaint.

Appellant Rogers alleged in his complaint that during the year 1881 Hon. Harvey D. Scott was the regular judge of the Vigo Circuit Court, of Vigo county, in this State; that during the vacation of such court preceding its September term, 1881, Judge Scott was sick in Battle Creek, in the State of Michigan, and was thereby unable to return to this State or to hold the September term, 1881, of such court; that, in order that the court should not lapse, by reason of his sickness and absence, Judge Scott wrote to I. N. Pierce, Esq., an attorney of such court, informing him of such sickness, and requesting him to ascertain the wishes of the bar of such court as to the appointment of a judge pro tempore to hold such September term of the court, and to make a selection and prepare an appointment and send it to him for his signature, and suggesting that Charles Cruft, Esq., a regular practicing attorney of such court and eligible to the office of judge, would be a desirable appointment, but intimating that he would conform to the selection made by the bar; that thereupon I. N. Pierce prepared and sent to Judge Scott an appointment in blank of a judge pro tempore to hold the September term, 1881, of such court; that when such appointment was received by Judge Scott he was very sick, and signed the same without observing or filling the blank left therein for the name of the appointee; that in this condition the appointment was returned to Pierce by mail, and was so delivered to said Charles Cruft, there not being sufficient time to return the same to Judge Scott for amendment before such term of court should begin; that Cruft, having been informed that Judge Scott had so suggested his name as aforesaid, caused his own name to be inserted in such blank appointment as the appointee, and on the 5th day of September, 1881, caused such appointment, with his name so filled therein, to be entered upon the order-book of such court, and, having been duly sworn, proceeded to discharge the duties of judge of such court for such term; and that Judge Scott was absent from such court during such entire term, and signed none of the records or entries of such term in the order-book of the court, but that all such entries and records were signed by said Cruft as judge.

And the appellant further alleged that at the September term, 1881, of such court, there was an action pending wherein the appellee Beauchamp was plaintiff and the appellant Rogers was defendant; that the appellant and his attorneys in such action, being ignorant of the manner of Cruft's appointment as judge of such court, or of any of the circumstances above stated, except so far as they may be constructively charged with knowledge thereof by the record in such action, submitted the cause for trial to Cruft as judge of the court for such term, who ordered final judgment therein against the appellant; that the appellant and his attorneys did know that Charles Cruft was acting as judge of such court for its September term, 1881; and that the sole authority of Cruft to act as such judge was his appointment made and procured as aforesaid. Wherefore appellant said that such judgment was void.

Appellant further alleged that appellee Beauchamp had caused an execution to be issued on such void judgment, which writ was then in the hands of appellee, John Cleary, as sheriff of Vigo county; and that Cleary, as such sheriff, was about to levy such execution on the property of the appellant, to his irreparable injury. Wherefore, etc.

The appellees' counsel has not favored this court with any brief or argument in support of the decision below sustaining their demurrer to the foregoing complaint; but counsel has left us to find out, if we can, the grounds, if any, upon which such decision can be sustained. We may remark in the outset, that we can perceive no sufficient reason, and none is stated, for the commencement of this suit in the superior court of Vigo county. The objects of the suit, as shown by the complaint, were to have a judgment of the Vigo Circuit Court, a court of at least equal, if not superior, dignity to such superior court, annulled and declared void, and the collection of an execution issued on such judgment enjoined by the decree of the superior court. It is true that the jurisdiction of the superior court of the subject-matter of this suit was not called in question below, nor is it questioned here in any manner, by any assignment of error or cross error, or otherwise. But the question is in the record, and while we are not required to decide it as the case is presented, yet we...

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