Backer v. Eble

• Decision Date: 12 March 1896
• Docket Number: 17,600
• Citation: 43 N.E. 233,144 Ind. 287
• Parties: Backer et al. v. Eble et al
• Court: Indiana Supreme Court

43 N.E. 233

144 Ind. 287

Backer et al. v. Eble et al

No. 17,600

Supreme Court of Indiana

March 12, 1896

From the Perry Circuit Court.

Appeal dismissed.

S. K Connor and I. S. Bramel, for appellants.

H. A Mattison, F. B. Posey and A. J. Clark, for appellees.

OPINION

McCabe, J.

The transcript in this case presents a curiosity. The appellants sued the appellees for possession of a piece of ground in the town of Troy, in the county of Perry. After the issues were made at the May term, 1894, the cause was continued, as the transcript states, without any showing that the cause was submitted for trial to either court or jury. The transcript shows that in vacation between the May and August terms, to-wit: on the 29th day of June, 1894, the judge of the Perry Circuit Court filed a paper called a special finding and conclusions of law, and following the conclusions of law in such paper is a formal judgment for the defendants pursuant to the conclusions of law, and below the judgment, on such paper, the judge's signature is appended, and that is the only signature to the special finding and conclusions of law. This paper does not show any submission of the cause for trial. There does not appear to have been any action taken on the finding in term, nor was any judgment rendered other than that already mentioned.

At the following August term, the appellants moved for judgment in their favor on the special finding, which was overruled; then they moved for a new trial, and in that motion notified the court, which notice formed a part of the motion, that they intended to take the cause to the Supreme court on the bill of exceptions only, but no bill of exceptions was ever filed. The motion for a new trial was overruled. The plaintiffs at the same term excepted to the conclusions of law.

They have appealed and assigned said rulings for error.

And strange to say, while the prayer of appellants' assignment of error is that the judgment be reversed, they make the point in their brief that the record shows the rendition of no judgment.

We can neither reverse nor affirm unless the record shows the rendition of a judgment.

And stranger still, appellants cite in support of their contention that a judgment cannot be entered in vacation, Passwater v. Edwards, 44 Ind. 343, and Mitchell v. St. John, 98 Ind. 598, to which we add Newman v. Hammond, 46 Ind. 119; Ferger v. Wesler, 35 Ind. 53.

Under these decisions the supposed judgment contained in the special finding was void because not rendered in term time. This is so because when the law authorizes or contemplates the doing of a judicial act, it is and must be understood to mean that the court in term must do it, and the judge in vacation cannot unless the power is expressly conferred upon him by statute. Ferger v. Wesler, supra. There is no statutory provision authorizing a judge to render judgment in vacation, as was attempted to be done in this case....