Jordan v. Indianapolis Coal Co.
| Decision Date | 21 February 1913 |
| Docket Number | No. 7,859.,7,859. |
| Citation | 100 N.E. 880,52 Ind.App. 542 |
| Parties | JORDAN v. INDIANAPOLIS COAL CO. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; Pliney W. Bartholomew, Judge.
Action by the Indianapolis Coal Company against Arthur Jordan. Judgment for plaintiff, and defendant appeals. AffirmedEdmund B. Walker and Theop J. Moll, both of Indianapolis, for appellant. Jesse W. Potter, of Indianapolis, for appellee.
Appellee filed its complaint in the trial court, and recovered a judgment against appellant for the value of a car load of crushed stone, alleged to have been delivered by it to appellant at his special instance and request.
[1] Appellant did not challenge the sufficiency of the complaint in the trial court by demurrer or otherwise; but its sufficiency is questioned for the first time by an assignment of error. When so presented, the objections urged against this complaint are unavailable. The complaint is sufficient to bar another action for the same cause. Town of Knightstown v. Homer, 36 Ind. App. 139, 75 N. E. 13;Lewis Twp. Imp. Co. v. Royer, 38 Ind. App. 151, 76 N. E. 1068.
[2] The objection that the bill of particulars filed with the complaint is not properly referred to or identified by the complaint cannot be successfully presented for the first time on appeal. Chamness v. Chamness, 53 Ind. 301;Douglass v. Keehn, 71 Ind. 97.
It appears from the record that on the 31st day of May, 1910, the regular judge of the court in which this action was pending, on account of sickness, appointed the Honorable Charles J. Orbison, as judge pro tem. to preside as judge of such court until such time as the regular judge should be able to resume his duties. The order of appointment was entered upon the order book of the court, but it was not signed by the regular judge. Charles J. Orbison took the oath and assumed the duties of judge pro tem. As such, he assumed jurisdiction of this case, and proceeded to final judgment. At no time during the course of the proceedings in the trial court did appellant make any objection to the regularity or validity of appointment of the judge pro tem., and no question was raised as to his right or authority to act as such. The question is presented for the first time on appeal by an assignment of error.
[3] The assignments of error presenting this question are grounded upon the proposition that the trial court had no jurisdiction to render the judgment from which this appeal is taken. The position of appellant upon this proposition cannot be maintained. It is not contended that the superior court of Marion county did not have jurisdiction of the class of cases to which the one at bar belongs; and its jurisdiction of the person of appellant is not questioned. It is therefore apparent that the court had jurisdiction of the subject-matter of the action and of the person of the...
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Floyd v. State
...force to a judge pro tempore.' ...." Gordy v. State, 262 Ind. at 282-83, 315 N.E.2d at 367 (quoting Jordan v. Indianapolis Coal Co. (1913), 52 Ind.App. 542, 544-45, 100 N.E. 880, 881). Survance, 465 N.E.2d 1076, 1082. Accord, Skipper v. State (1988), Ind., 525 N.E.2d 334, 335. See also Gord......
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Gordy v. State
...the class of cases to which this one belongs. A similar issue was considered by our Appellate Court in Jordan v. Indianapolis Coal Co. (1913), 52 Ind.App. 542, 544--545, 100 N.E. 880: 'The assignment of errors presenting this question is grounded on the proposition that the trial court had ......
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Survance v. State
...be raised on appeal for the first time." Gordy v. State, 262 Ind. at 282-83, 315 N.E.2d at 367 (quoting Jordan v. Indianapolis Coal Co., (1913) 52 Ind.App. 542, 544-45, 100 N.E. 880, 881). In the present case Mr. Arany was acting under color of authority pursuant to his appointment as judge......
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Morrow, Inc. v. Munson, 18926
...thereto will be deemed waived on appeal. See, also, Lillie v. Trentman, 1891, 130 Ind. 16, 29 N.E. 405; Jordan v. Indianapolis Coal Co., 1913, 52 Ind.App. 542, 100 N.E. 880; Larrance v. Lewis, 1912, 51 Ind.App. 1, 98 N.E. 892. Appellants' conduct in this matter looks too much like an attemp......