Moerecke v. Branyan

• Decision Date: 28 May 1915
• Docket Number: 22,375
• Parties: Moerecke v. Branyan et al
• Court: Indiana Supreme Court

108 N.E. 948

183 Ind. 591

Moerecke v. Branyan et al

No. 22,375

Supreme Court of Indiana

May 28, 1915

Rehearing Denied October 14, 1915.

From Lake Circuit Court; Lincoln V. Cravens, Special Judge.

Action by Louis A. Bryan and others against William Moerecke, in which the latter filed cross-complaint against the plaintiffs. From an adverse judgment, the cross-complainant appeals.

Affirmed.

Frank B. Pattee, for appellant.

John H Gillett, Otto J. Bruce, W. Vincent Youckey, William H Matthew, and Frank N. Gavit, for appellees.

OPINION

Morris, J.

The appellant, by cross-complaint, sued appellees in ejectment and to quiet title. Issues were formed, and on proper application, Hon. Lincoln V. Cravens was, on October 3, 1911, appointed special judge to hear the cause, and forthwith qualified and assumed jurisdiction. On October 7, 1911, the parties appeared and the trial of the cause was commenced but not completed, and, as the term of court expired on that day, it was extended for the completion of the trial (§§ 1470, 1658 Burns 1914, § 1349 R. S. 1881, Acts 1885 p. 114) and, by agreement of the parties, the hearing was adjourned to October 12, 1911, at which time the taking of evidence was resumed. The hearing was continued on the next day, when, by agreement of the parties, it was adjourned to October 30, 1911. On that day the parties appeared and the hearing of evidence was resumed, and continued on October 31, November 1, 2, 3 and 4, when it was completed, and the decision taken under advisement. A special finding of facts had been requested, and the court ordered counsel to prepare findings for submission at such future time as should meet the convenience of all parties, and the court.

On December 4, 1911, all the parties appeared in open court, and by agreement the cause was continued until the next term, which commenced the first Monday in February, 1912. In the meantime, on January 13, 1912, all the parties appeared, pursuant to agreement, and argument of counsel was heard. On February 14, 1912, the parties appeared, and, by agreement, the cause was continued until the next term of court which commenced the fourth Monday in April, 1912. On May 13, 1912, the parties appeared, and by agreement the cause was continued until the next term of court which commenced on the first Monday of September. In the meantime the parties appeared and presented to the special judge their respective drafts of special findings, and arguments were heard thereon, and the special judge then indicated to the parties what the special findings would be, and it was agreed by all parties that the court should draft its findings, with conclusions of law thereon, and submit a copy thereof to each of the parties, and that at a later time, agreeable to the parties and the judge, the same should be filed during the September term. On September 13, 1912, all the parties appeared and the judge filed his special findings with conclusions of law thereon. As shown by the original order book entry of October 7, 1911, the further hearing of the cause was adjourned to Monday October 9, 1911. From that time, until September 13, 1912, no order book entry was made of any proceeding in the cause, neither did the special judge make any minute thereof. At nine o'clock a.m., on September 13, 1912, and before the special judge filed his findings, appellant in person, and by counsel who had not theretofore represented him in the cause, appeared before the regular judge, Hon. Willis C. McMahan, then occupying the bench, and filed a written motion seeking the appointment of a special judge in this cause. This motion was verified and set out the alleged fact that the special judge, Cravens, had failed to appear on October 9, 1911, to try the cause, and had not subsequently appeared at the November, 1911, the February or April terms, 1912, and because thereof the appointment was vacated. § 429 Burns 1914, Acts 1903 p. 343. This motion was subsequently overruled by the regular judge. Later in the day, Cravens, special judge, took the bench, and counsel for appellees immediately moved orally that the court sign and file its findings and conclusions, whereupon, before the filing thereof, appellant tendered and offered to file his written objections to the right and power of Cravens to further act as special judge in the cause and to remand the case to the regular judge for the appointment of another special judge, because as claimed, the appointment of Cravens had been vacated. Appellees objected to the filing of the tendered objections, and, after argument of counsel the court refused to permit the filing thereof. Appellant thereupon orally objected to the special judge filing his findings, on the ground of lack of jurisdiction, but the objection was overruled and the findings and conclusions were filed. Thereupon appellant filed a written motion to set aside the submission of the cause. The motion averred the same facts, in substance, as were set forth in the rejected motion tendered before the filing of the findings. The motion was overruled. Appellees filed a motion for a nunc pro tunc entry of the proceedings in the cause from October 7, 1911, to September 13, 1912. Over appellant's objection, supported by affidavits, the motion was sustained, and a record of the proceedings, as before set out in this opinion, was made, including the correction of the entry of October 7, 1911. Judgment was rendered in favor of appellees. Appellant's motion for a new trial was overruled, and this action is assigned as error here.

It is earnestly contended that the court erred in sustaining the motion of appellees for the nunc pro tunc entry. Under the statute then in force, the terms of the circuit court in Lake County commenced on the first Monday of February, fourth Monday of April, first Monday of September and third Monday of November, and lasted five weeks. It is claimed by appellant that where, as here, there was no written minute or memorandum on which to base a nunc pro tunc entry, the power of the court in that regard ceased with the close of the term of court. Where the cause is no longer in fieri, such rule is recognized. Wills v. Wills (1911), 176 Ind. 631, 635 96 N.E. 763, and authorities cited. But counsel for appellees claim that such rule does not obtain previous to the rendition of judgment and while the cause is still in fieri; that in the meantime omitted entries may be supplied and erroneous ones corrected by the court, acting on its own knowledge, and we are constrained to hold that this position is well taken. At common law, the judgment roll was a parchment record of the entire proceedings and was filed in the treasury of the court, but it was not made up or even commenced, unless by the entry of what was termed the incipitur until after final judgment, and, until the roll was completed, no proceeding in a cause could be said to be a matter of record. 24 Am. and Eng. Ency. Law (2d ed....