McDaniels v. McDaniels

• Decision Date: 09 October 1945
• Docket Number: 17388.
• Citation: 62 N.E.2d 876,116 Ind.App. 322
• Parties: McDANIELS v. McDANIELS.
• Court: Indiana Appellate Court

62 N.E.2d 876

116 Ind.App. 322

McDANIELS v. McDANIELS.

No. 17388.

Appellate Court of Indiana, in Banc.

October 9, 1945

Appeal from Lake Superior Court; Floyd Murray, Special Judge.

Action by Buell R. McDaniels against Lucy E. McDaniels for divorce wherein defendant cross-complained for a decree of separation from bed and board and for other relief. From a judgment granting complainant an absolute divorce, defendant appeals.

Affirmed.

Edwin J. Fitzgerald, Gizella V. Stodola, and Martin J. Downey, all of Hammond, for appellant.

Francis J. Dorsey and William L. Travis, both of Hammond (McAleer Dorsey & Travis, of Hammond, of counsel), for appellee.

HAMILTON Judge.

This is an appeal from a judgment granting appellee an absolute divorce upon his complaint charging appellant with cruel and inhuman treatment, and denying appellant relief upon her cross-complaint in which she charged appellee with cruel and inhuman treatment and prayed for a decree of separation from bed and board for a period of two years and alimony in the sum of $3000.

Errors assigned and relied upon for reversal are: (1) That the court erred in overruling appellant's written objections to the Hon. Floyd Murray presiding as special judge, which assignment is cause No. 1 of appellant's motion for a new trial; (2) that the court erred in overruling appellant's motion for a new trial; and (3) that the court erred in overruling appellant's motion in arrest of judgment.

It affirmatively appears from the record and appellant's brief that the judgment was rendered on October 16, 1944 that appellant's motion for a new trial was filed on October 28, 1944, and overruled on February 23, 1945; and that the motion in arrest of judgment was filed on February 23, 1945, and overruled on the same date.

Appellant, in her brief, concedes that a motion in arrest of judgment must precede the rendition of the judgment and cannot be considered if made after judgment is rendered. Smith and Wife v. Dodds and Another, Administrators, 1871, 35 Ind. 452; Watson's Practice and Forms, vol. 2, § 1907, p. 482, and authorities cited therein.

Notwithstanding the unbroken line of numerous decisions of the Supreme Court sustaining the above rule of law, appellant asks this court to overrule the Supreme Court and announce a new rule of practice. This court is bound by the decisions of the Supreme Court and has no authority to overrule or disregard any decision of that court. Therefore, in view of the record in the instant case, we must hold that no question is presented for our consideration by appellant's third assignment of error, under which she attacks the sufficiency of appellee's complaint to state a cause of action for divorce.

It is well settled that the action of the trial court in sustaining or overruling an application for a change of venue from a judge, or objections to the appointment of a special judge, must be assigned as a ground or reason for a new trial, and that such rulings present no question for review upon appeal when presented solely by an independent assignment of error. Scanlin v. Stewart et al., 1894, 138 Ind. 574, 579, 37 N.E. 401, 38 N.E. 401; National Hame & Chain Co. v. Robertson, 1930, 90 Ind.App. 556, 559, 161 N.E. 851.

As heretofore stated, appellant's first assignment of error was also assigned as reason No. 1 in the motion for a new trial and because of this fact the question is properly presented for our consideration under assignment of error No. 2. Other reasons assigned in the motion for a new trial are; (2) error in denying appellant's motion for a finding in her favor made at the conclusion of the plaintiff's evidence; (3) that the finding and decision of the court is not sustained by sufficient evidence; and (4) the decision and finding is contrary to law.

The record discloses that on September 28, 1944, the appellant, who was the defendant in the trial court, filed an affidavit for a change of venue from the Hon. Joseph V. Stodola, Jr., the regular judge of the court wherein this cause of action had been instituted and was then pending. This motion was granted on the same date, and the court appointed Floyd R. Murray, a member in good standing at the bar of said court, to act and preside as special judge in said cause of action. The said Floyd R. Murray qualified and assumed jurisdiction as special judge in said cause on October 6, 1944. Thereupon the appellant filed her written objections to the oppointment of said Floyd R. Murray as special judge in said cause, based upon the grounds that the regular judge of said court, from whom appellant had taken and been granted a change of venue, had assumed the right to name Floyd R. Murray as special judge instead of designating and submitting a list containing the names of three competent and disinterested persons from whom the special judge would be selected in the manner as provided in § 2-1409, Burns' 1933, § 207, Baldwin's 1934. Said objections were overruled and the cause proceeded to trial, finding, and judgment.

It is conceded by both appellant and appellee that Chapter 85, Acts of 1937, being § 2-1430, Burns' 1933 (Supp.), wherein a list of names is certified by the Clerk of the Supreme Court for the selection of a special judge, is not involved in the consideration of the question presented by this appeal for the reason that the affidavit for a change of venue was not filed under and pursuant to said Act. This leaves for our consideration the following sections of the statutes applicable to the question presented for decision, to wit: §§ 2-1401, 2-1402, and 2-1409, Burns' 1933, §§ 190, 193, and 207, Baldwin's 1934.

§ 2-1401, Burns' 1933, § 190, Baldwin's 1934, provides in part that: 'The court, in term, or the judge thereof, in vacation, shall change the venue of any civil action upon the application of either party, made upon affidavit showing any one or more of the following causes: * * * Seventh. When either party shall make and file an affidavit of the bias, prejudice or interest of the judge before whom the said cause is pending.'

Appellant's application for a change of judge alleged facts conforming to the requirements of the above statute.

§ 2-1402, Burns' 1933, § 193, Baldwin's 1934, reads as follows:

'When any matter of a civil, statutory or equitable nature not triable by a jury, is pending, the judge before whom said cause is pending shall change the venue thereof upon the application of either party to such cause, made upon affidavit, of either party or his attorney, showing any one or more of the reasons named in the statutes of this state authorizing changes of venue from the judge in civil actions. And the presiding judge shall make an appointment of a special judge to hear such cause in the manner provided by law for changes of venue in civil actions.'

It has been expressly held by this court in the case of Styles v. Styles, 1921, 76 Ind.App. 550, 132 N.E. 645, that § 2-1402, supra, is applicable and authorizes the granting of a change of venue from the presiding judge of the court in actions for divorce.

It is the appellant's contention that, because of the following language contained in § 2-1402, supra, namely: 'And the presiding judge shall make an appointment of a special judge to hear such cause in the manner provided by law for changes of venue in civil actions,' (our italics), the regular judge was required to follow the provisions of § 2-1409, Burns' 1933, § 207, Baldwin's 1934, in the selection of a special judge. Said section reads as follows:

Hereafter whenever a change of venue is taken from the judge in any civil action pending in any circuit or superior court in this state, or in any case where the presiding judge is disqualified from any cause to try such cause, if the parties in such action shall agree, in open court, upon some judge or member of the bar of...