Railroad School Township, Starke County v. Christensen
| Decision Date | 25 October 1928 |
| Docket Number | 13,059 |
| Citation | 169 N.E. 533,88 Ind.App. 86 |
| Parties | RAILROAD SCHOOL TOWNSHIP, STARKE COUNTY, INDIANA, v. CHRISTENSEN |
| Court | Indiana Appellate Court |
From Starke Circuit Court; Charles H. Peters, Judge pro tem. William C. Pentecost, Judge.
Action by Lucinda Christensen against Railroad School township Starke county, Indiana, and John Eckert, township trustee. From a judgment for plaintiff the defendant township appeals.
Affirmed.
Oscar B. Smith, for appellant.
James C. Fletcher and William J. Reed, for appellee.
Action by appellee against appellant township, to recover damages for alleged failure of appellant to carry out a contract entered into by the parties, whereby appellee agreed to teach in the public schools of appellant township, in such building, room and such grade or grades as should be designated by appellant for the term of eight months commencing September 14, 1925.
Upon a trial of the case, the court by special findings found against appellant, stated its conclusions of law and rendered judgment against appellant in the sum of $ 882.
The cause was first submitted to the Honorable William C Pentecost, sole judge of the Starke Circuit Court, April 5, 1926. On January 3, same being the January term, 1927, said sole judge of the Starke Circuit Court, was ill and utterly unable to perform his duties as such judge, and, pursuant to statute, in such cases made and provided, the auditor, clerk and sheriff of Starke county appointed Charles Hamilton Peters as judge pro tem for the January term, 1927, of said court. Thereafter, during the January term of said court, the said judge pro tem, presided in said cause and heard the evidence, and on the last day of said term, being February 5, 1927, took said cause under advisement until the first day of the March term, 1927. Upon the first day of the March term, 1927, of said court, being March 14, 1927, the Honorable William C. Pentecost, sole judge of said court, made and entered the following entry, to wit:
"Comes now, William C. Pentecost, the regular judge of this Starke Circuit Court, and, having regained his health, now resumes his duties as such judge."
Subsequently, upon March 18, 1927, same being the fifth judicial day of the March term of said court, said judge pro tem found the facts specially and stated his conclusions of law thereon. Before rendition of the judgment and, upon March 23, 1927, appellant filed its amended verified motion challenging the jurisdiction of said judge pro tem to act, and it moved to set aside the submission of the cause. On March 25, 1927, the Honorable William C. Pentecost, sole judge of the Starke Circuit Court, refused to rule on appellant's amended motion challenging the jurisdiction of the judge pro tem. Thereupon, appellant filed application for change of venue from the judge pro tem, which was overruled. On April 4, 1927, appellant's amended motion challenging the jurisdiction of the judge pro tem and to set aside the submission of the cause was overruled by the judge pro tem. Proper exceptions were taken to each of these rulings of the court, which appellant presents as reversible error.
The statute, § 1814 Burns 1926, provides for the appointment of a judge pro tem in the manner in which the judge pro tem was here selected, and it provides that he shall serve until the "return of the regular judge." It is true that a special judge ordinarily does not lose jurisdiction to complete the trial of a case because the regular judge returns during the trial and resumes his regular duties, and so it should be, that confusion, hardship and expense to litigants may be avoided. The appointment here was for a definite term of court, but the statute having fixed the time during which the appointed should serve, the attempt to limit such appointment to the January term was without force or effect, and the judge pro tem was authorized to serve at least until the regular judge resumed the bench.
But, under the facts as they appear by the record, another principle may be invoked. On March 18, 1927, being the March term of court, the judge pro tem, assuming further jurisdiction of said cause, found the facts specially and stated his conclusions of law thereon, and there was no objection to such action until, the special findings and conclusions being against appellants, they thereafter objected to the jurisdiction of the judge to further proceed with the case. Even though the jurisdiction of the judge pro tem may be considered as terminated upon the regular judge resuming the bench, if the judge pro tem presides at a subsequent term, at which his authority is recognized by the parties, they thereby waive any objection to his continuing jurisdiction. Small v. Reeves (1896), 37 S.W. 682; Ex parte Elgan (1912), 8 Okla. Crim. 75, 126 P. 584.
Under the circumstances of this case, there is no error as to the jurisdiction of the judge pro tem of which appellants may complain, and their motion for a change of judge, not having been made before the case was submitted for trial, came too late. Whitcomb v. Stringer (1903), 160 Ind. 82, 66 N.E. 443.
Other errors which appellants undertake to present are that the court erred in sustaining the motion of appellees for judgment on the special findings of fact; ...
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