Heacock v. Arnold

• Decision Date: 11 December 1929
• Docket Number: 13,542
• Citation: Heacock v. Arnold, 90 Ind.App. 476, 169 N.E. 89 (Ind. App. 1929)
• Parties: HEACOCK v. ARNOLD
• Court: Indiana Appellate Court

169 N.E. 89

90 Ind.App. 476

HEACOCK v. ARNOLD

No. 13,542

Court of Appeals of Indiana

December 11, 1929

From Pike Circuit Court; William E. Cox, Judge pro tem.

Action between Alice Heacock and Jefferson Arnold. From the judgment rendered, the former appealed.

Affirmed.

John K Chappell and Ely & Corn, for appellant.

Carl M Gray, for appellee.

OPINION

NEAL, P. J.

The appellant has assigned as error: The court erred in overruling the motion of the appellant for a new trial, and one of the causes is to the effect that the court erred in overruling appellant's objection to question No. 1 propounded to each of the twelve jurors by the appellee on his voir dire, to wit: "Mr. (each of the twelve jurors selected), do you hold a policy in the State Automobile Insurance Association?"

Before we can consider the assigned error, two propositions advanced by the appellee must be answered, and if the answer be in the affirmative, the errors assigned cannot be considered in this appeal.

First: "The special bill of exceptions presents but one question propounded to each of the twelve jurors, and the objection to said question and the ruling of the court on said objection, and does not contain the entire voir dire examination of the jury. Therefore, no alleged error predicated upon the voir dire examination is presented to this court for decision." This identical proposition was answered by this court in the case of Annadall v. Union, etc., Lime Co. (1908), 42 Ind.App. 264, 84 N.E. 359. We quote from the opinion: "Unless the record contains the entire voir dire examination of the jurors, the action of the trial court, as here sought to be presented, will not be reviewed." We adhere to the holding of the court in the above case, thus answering the first question.

The second: "The judge who signed the general bill of exceptions did not have authority to sign said bill of exceptions, and was not a judge pro tempore of the Pike Circuit Court. Therefore, the general bill of exceptions is not in the record."

The record reveals the following facts in regard to the appointment of the Hon. W. E. Cox, judge pro tempore: On August 30, 1928, the Hon. Bomar Traylor, judge of the Pike Circuit Court, appointed William E. Cox, a competent and reputable attorney of the fifty-seventh Judicial Circuit Court, to act as judge pro tempore of the September term of the court beginning on September 3, 1928; the Hon. Bomar Traylor was at the time unable to attend and preside at the September term of the court on account of sickness; on September 3, 1928, the Hon. W. E. Cox took the oath of office as judge pro tempore; the trial of the above-entitled cause was had before W. E. Cox, judge pro tempore at the September term 1928, of the Pike Circuit Court; on November 12, 1928, the same being the first day of the November term of the Pike Circuit Court, Judge Bomar Traylor appointed Hon. W. E. Cox judge pro tempore; the appointment reads in part as follows: "Now, therefore, the undersigned judge of said court hereby appoints W. E. Cox . . . to act as judge pro tempore thereof for said September term, 1928, of said Pike Circuit Court." (Our italics.) Appellant filed her motion for new trial in the cause on October 8, 1928, which was overruled by the Hon. W. E. Cox, judge pro tempore on November 19, 1928.

On November 24, 1928, Judge Bomar Traylor returned to court and appointed the Hon. William D. Curll, as judge pro tempore for the Pike Circuit Court for the third week of the November term, 1928, beginning November 26, 1928. Hon. W. D. Curll qualified as judge pro tempore. Appellant, on November 26, 1928, filed her appeal bond, which was approved by judge pro tempore, W. D. Curll. The certificate to the general bill of exceptions is to the effect that the same was presented to the court on January 7, 1929, and was signed by W. E. Cox, judge pro tempore, on the same day. The record fails to disclose that the Hon. W. E. Cox was ever appointed judge pro tempore except at the times and in the matter as herein set forth.

The court takes judicial notice of who the regular judges of the several judicial circuits are, including the Pike Circuit Court, and also takes judicial notice of the beginning and end of the terms of court in the various circuits of the State of Indiana, including the Pike Circuit Court, and therefore, that on January 7, 1929, W. E. Cox, or William E. Cox, was not the regular judge of the Pike Circuit Court; that the Fifty-Seventh Judicial Circuit is composed of Pike and Dubois counties; that the first day of January term of the Dubois Circuit Court commenced on January 7, 1929. Furthermore, this court judicially knows that the November term of the Pike Circuit Court ended prior to January 7, 1929. Stanley v. Stanley (1921), 190 Ind. 528, 131 N.E....