Bartley v. Phillips
| Decision Date | 28 March 1888 |
| Docket Number | 12,118 |
| Citation | 16 N.E. 508,114 Ind. 189 |
| Parties | Bartley et al. v. Phillips |
| Court | Indiana Supreme Court |
From the Noble Circuit Court.
Judgment affirmed, with cost.
L. W Welker, for appellants.
H. G Zimmerman and J. H. Baker, for appellee.
Judgment was rendered below against appellant John S. Bartley for the amount of several promissory notes, and a decree foreclosing a mortgage executed by him and wife was rendered against all of the defendants, appellants here.
Appellants, except John S. Bartley and wife, were made parties defendant for the reason, as averred in the complaint, that they claimed to have liens upon the land covered by the mortgage.
Hannah Bartley, one of the defendants below, and appellant here, held a mortgage, the lien of which the court below held was and is subject to the lien of appellee's mortgage.
On the thirteenth day of the March term, 1884, of the court below, Hon. R. Wes. McBride, the regular judge of that court, being unable, on account of sickness, to hold his court, duly appointed Hon. P. V. Hoffman a special judge to preside and hold the court until he, Judge McBride, could return. For some reason not stated, the county officers, upon the same day, also appointed Mr. Hoffman as special judge to hold the court until the return of the regular judge. Mr. Hoffman at once took the proper oath and entered upon the discharge of his duties. The trial of this case was completed on the twenty-fourth day of the term, and, by agreement of the parties in open court, the special judge took the same under advisement until the second day of the succeeding term, thus taking time to decide the case, and to prepare a special finding of facts, with his conclusions of law thereon. The first entry in the cause at the succeeding term, as shown by the record, is, that The record further shows that, on the 16th day of June, being the seventh judicial day of the term, the special judge and the parties were again in court, and again, by agreement of the parties, the time was extended until the 24th day of the month for the preparation and filing of the special finding of facts, etc. On that day, by a like agreement, the time was again extended until the 26th day of the month. On the 26th, the special judge and the parties were again in court, and the special finding of facts, with the court's conclusions of law thereon, was filed.
John S. Bartley and Hannah Bartley excepted to the conclusions of law. John S. Bartley moved for a venire de novo, which being overruled, he excepted, and filed his motion for a new trial, which motion was also overruled, and he again excepted.
It is not claimed that the appointment of Mr. Hoffman as judge pro tempore was not valid in the first instance, but the claim is, that his authority to act in the cause ceased with the March term of the court, and the return of the regular judge at the June term, and that, therefore, all of his acts, subsequent to the March term, when he took the cause under advisement, were and are void. In some of the earlier cases, under statutes then in force, it was held that a special judge, or judge pro tempore, could do nothing in a cause after the term at which he was appointed. Greenup v. Crooks, 50 Ind. 410. And in some of those cases it was held that, upon appeal to this court, the record must affirmatively show a legal appointment of the special judge, or judge pro tempore, in the mode prescribed by the statute. Board, etc., v. Coats, 17 Ind. 150.
It has been held, however, and all of the later cases are to that effect, that where no objections were made to the special judge, or judge pro tempore, and no questions were made below as to the regularity of his appointment, the record upon appeal need not show the manner of his appointment, and that, the record being silent in such case, this court will presume that the appointment was properly and legally made, provided there was in force a statute under which an appointment might have been made; and further, that the record in this court being silent upon the subject, a party can not make the objection here, for the first time, that the appointment of the special or pro tempore judge was not properly made. Feaster v. Woodfill, 23 Ind. 493. That case overruled the case of Board, etc., v. Coats, supra. Kennedy v. State, 53 Ind. 542; Case v. State, 5 Ind. 1; Watts v. State, 33 Ind. 237; State, ex rel., v. Murdock, 86 Ind. 124; Winterrowd v. Messick, 37 Ind. 122; Board, etc., v. Seaton, 90 Ind. 158; Kenney v. Phillipy, 91 Ind. 511; Zonker v. Cowan, 84 Ind. 395; Powell v. Powell, 104 Ind. 18, 3 N.E. 639 (29); Rogers v. Beauchamp, 102 Ind. 33, 1 N.E. 185. See, also, Huffman v. Cauble, 86 Ind. 591.
If, in the case before us, it should be conceded that Mr. Hoffman's authority to act in the cause ceased with the March term, at which he was appointed, it would not follow that we should hold here that his acts at the June term were without authority, and void. The regular judge had the same authority to appoint him to preside in the case at the June term that he had at the March term. As to whether or not such reappointment was made at the June term the record is silent. If such a reappointment was necessary, the record being silent, this court will presume that it was properly made. Board, etc., v. Courtney, 105 Ind. 311, 4 N.E. 896 (317).
Whether Mr. Hoffman, by virtue of his appointment at the March term had...
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