Kissel v. Lewis

• Citation: 27 Ind.App. 302,61 N.E. 209
• Parties: KISSEL v. LEWIS.
• Decision Date: 01 October 1901
• Court: Court of Appeals of Indiana

27 Ind.App. 302

61 N.E. 209

KISSEL

v.LEWIS.

Appellate Court of Indiana, Division No. 1.

Oct. 1, 1901.

Appeal from circuit court, Hamilton county; Ira W. Christian, Special Judge.

Contempt proceedings for violation of injunction by Zimri C. Lewis against Charles Fred Kissel. From a judgment in favor of plaintiff, defendant appeals. Reversed.

McCullough, Reinhard & Spahr and Shirts & Fertig, for appellant. Eli F. Ritter, for appellee.

ROBINSON, J.

It appears from a bill of exceptions that on March 13, 1899, the regular judge of the Hamilton circuit court appointed Ira W. Christian special judge to try a certain cause brought by appellee against appellant for injunction, and as such special judge, on April 27, 1899, he rendered a decree perpetually enjoining appellant from keeping a certain beer garden and saloon. An appeal was taken, the appeal bond having been approved by such special judge prior to May 4, 1899. The bill further recites that whatever authority, power, or right, if any, Christian has or had at any time to preside or act as judge of that court is and was derived exclusively from his appointment as special judge on the 13th day of March, 1899; and that, except as to such appointment and oath then taken, he has “in no way up to this time been elected or appointed judge of said court, special judge thereof, or judge pro tempore thereof, and, except as to said oath above mentioned and set out, the said Ira W. Christian has not taken any oath to serve as judge of said court or special judge or judge pro tem. thereof, or in any way qualified as such judge; that, at the time of said appointment of said Christian as special judge as aforesaid, to wit, on said 13th day of March, 1899, the Hon. John. F. Neal was the regularly elected, qualified, and acting judge of said court, and has ever since continued so to be.” The bill also recites that on June 27, 1899, appellee filed with the clerk of the Hamilton circuit court a certain “complaint and affidavit for contempt,” averring that appellant had willfully disobeyed the injunction, to appellee's damage, and asked an attachment against appellant for contempt of court. This complaint was presented to Christian, as special judge of the Hamilton circuit court, who issued an order that appellant appear and show cause why an attachment for contempt should not be awarded against him. On June 30, 1899, appellant, by attorneys, appeared specially, and objected, in writing, to Christian sitting as special judge, for the reason that the Hon. John F. Neal was at the time the duly-elected, acting, and qualified judge; that this proceeding was a separate and independent proceeding from any cause theretofore tried or pending in that court; that there had never been any change of venue from the regular judge; that Christian had never been appointed or qualified to preside as judge in the cause, or as special judge, or as judge pro tempore; and that he was not the judge nor special judge nor judge pro tempore of the Hamilton circuit court, and had no authority to act. An exception was taken to the overruling of this objection.

In Thistlethwaite v. State, 149 Ind. 319, 49 N. E. 156, it is held that a proceeding for contempt of court in violating an injunction is a proceeding to enforce a civil right and remedy. See, also, Burkett v. Holman, 104 Ind. 6, 3 N. E. 406;Harris v. Investment Co., 146 Ind. 265, 45 N. E. 328;Jaseph v. Schnepper, 1 Ind. App. 154, 27 N. E. 305. When the statute (section 419, Burns' Rev. St. 1894) says that a special judge “shall have power to hear and determine said cause until the same is finally disposed of or change of venue thereof in proper cases,” it means until a final judgment or decree is entered in the cause,-until the rights of the parties respecting the matters involved are determined and adjudicated. It is true a special judge may sign bills of exceptions after a final decree or judgment is entered, but such an act is merely the completion of an order made by him...