Board of Comm'rs Fountain County v. Coats

• Decision Date: 29 November 1861
• Citation: 17 Ind. 150
• Parties: The Board of Commissioners of Fountain County v. Coats
• Court: Indiana Supreme Court

17 Ind. 150

The Board of Commissioners of Fountain County v. Coats

Supreme Court of Indiana

November 29, 1861

APPEAL from the Fountain Common Pleas.

The judgment is reversed, with costs. Cause remanded.

J. E McDonald and A. L. Roache, for the appellant.

W. H Mallory, for the appellee.

OPINION

Hanna J.

Coats sued the appellants on a special contract, averring performance on his part. Answer: denial, failure to perform &c. Trial; verdict and judgment, over a motion for a new trial, for plaintiff.

The record before us shows that the term of the Court at which the case was tried was begun by Tyler, whom we judicially know to have been, at that time, judge of said Court, and that he presided and made rulings in this case. Afterward, and before the day of the trial thereof, an entry shows that the Court was "held as aforesaid, and before the Honorable John J. Taylor, acting judge of said Court." The record nowhere shows by what means he became judge, nor for what reason. Upon overruling a motion for a new trial, he gave thirty days to perfect bills of exceptions. They were filed within the time, with his signature placed thereto, as judge, to-wit, about twenty-five days after said trial. No objection appears in the record to his presiding at said trial; nor does any express agreement to that effect appear.

A motion is made here, by the appellee, to strike out said bills of exceptions, so signed, on the ground that the said Taylor had no authority to sign the same. This objection seems to be based upon the supposition that the authority of the said Taylor ceased with the term. In support of this position, is an affidavit filed here, that he presided at said trial only, and that, by permission, for the convenience of Judge Tyler. The record itself does not disclose when his right to act began, nor when it ended; nor, indeed, is it affirmatively shown that he had any such right. In the absence of evidence, or judicial knowledge, of the right of said Taylor to sign said bills, we can not presume such right to exist. So far as the motion is concerned, it ought, therefore, to be sustained. But the appellant insists, that if the said Taylor could not make a record, by signing a bill of exceptions after the term, that he could not hold the Court, and therefore, the whole proceeding is void, and should be reversed. Perhaps, as an incident to the right and power of a judge to hear a case, he might,...