Perkins v. Hayward

• Decision Date: 21 June 1890
• Parties: Perkins et al. v. Hayward et al.
• Court: Indiana Supreme Court

124 Ind. 445
24 N.E. 1033

Perkins et al.
v.
Hayward et al.

Supreme Court of Indiana.

June 21, 1890.

Appeal from circuit court, La Grange county; Joseph B. Wade, Special Judge.

John H. Baker and Jos. H. Defrees, Jr., for appellants. John Morris and Drake & Merritt, for appellees.

Elliott, J.

This appeal is prosecuted from a judgment establishing a ditch and assessing benefits upon the lands of the appellants. A change of judges was secured upon due application, and Joseph B. Wade, Esq., was appointed a special judge to try the cause. The trial was entered upon before him as such judge on the third day of the September term of the court. On the fourth and last week of the term. the regular judge adjourned the term until the time fixed by law for holding the next regular term. The special judge proceeded with the trial of the cause after the order of adjournment made by the duly-elected judge, and the appellants seasonably objected. It is here contended that the special judge had no authority to proceed with the trial after the order of adjournment.

It is quite clear that, under the provisions of the act of 1885, (Elliott's Supp. § 284,) the regular judge, had he been presiding, might have continued the trial beyond the term, and, under the provisions of section 415, Rev. St. 1881, a special judge has substantially the same power as a regular judge, in so far as concerns the cause he is appointed to hear and determine. Beitman v. Hopkins, 109 Ind. 177, 9 N. E. Rep. 720; Staser v. Hogan, 120 Ind. 207-228, 21 N. E. Rep. 911, and 22 N. E. Rep. 990; Wilson v. Piper, 77 Ind. 437-440. In Lerch v. Emmett, 44 Ind. 331, it was said, in speaking of a judge pro tempore, that he has “all the power of the regular judge.” When the regular judge yields the bench, calls in a special judge, and duly appoints him to try a designated cause, the special judge thus appointed acquires full authority over the cause throughout all of its stages, and the authority of the regular judge is necessarily excluded. In this instance the regular judge could in no wise rightfully control or interfere with the proceedings of the special judge, for the latter was the sole and exclusive judge in the cause. He did not share power with the regular judge, for the authority of that judge was effectually excluded, so far as concerned the particular case, and he could make no order affecting that case. It was for the special judge to determine whether the trial should continue until the end was reached, and this was not only his right, but it was his duty, under the law, for it is declared by the statute that the special judge “shall have power to hear and determine said cause until the same is finally disposed of.” In our opinion the particular case where there is a special judge called in, with all its incidents, from the beginning to the end, passes under the exclusive control and jurisdiction of the special judge, subject to revert to the control of the regular judge in the event that the special judge becomes incapacitated or refuses to act. We think it quite clear that, under the provisions of section 10 of article 7 of the constitution, the legislature has the power to provide for the appointment of special judges, and to make provision for investing such special judges with the authority of regularly chosen judges in the cases enumerated. The provisions of the constitution are very comprehensive, and there can, as we conceive, be no question as to the legislative power to authorize the appointment of special judges, and to provide that their authority shall be of the same general extent and character as that of the regularly elected and qualified judge. In this instance, the special judge did not fix a term of court. He did no more than continue a trial regularly entered upon at a term fixed by law. The decision in Batten v. State, 80 Ind. 394, is therefore not relevant to the question as this record presents it. The appellants did not object to the trial of the case by the special judge, but their objection was made against the continuance of the trial; so that the only question presented is as to the power of the special judge to continue the case beyond the time fixed for the duration of the regular term of court. We cannot believe that the legislature intended that it should be left to the pleasure of...