Reid v. Mitchell

• Decision Date: 14 February 1884
• Docket Number: 10,311
• Citation: 93 Ind. 469
• Parties: Reid v. Mitchell
• Court: Indiana Supreme Court

93 Ind. 469

Reid v. Mitchell

No. 10,311

Supreme Court of Indiana

February 14, 1884

Reported at: 93 Ind. 469 at 474.

From the Lawrence Circuit Court.

The judgment is affirmed, with costs.

W. H Martin, S.D. Luckett, J. R. East and W. H. East, for appellant.

M. F Dunn and G. G. Dunn, for appellee.

OPINION

Howk C. J.

In this case the complaint of the appellant, the plaintiff below, contained two paragraphs, to each of which paragraphs the appellee's demurrers, for the want of sufficient facts to constitute a cause of action, were sustained by the court. The appellant excepted to each of these rulings, and declining to amend or plead further judgment was rendered against him for appellee's costs.

Errors are assigned by the appellant in this court, which call in question the decisions of the circuit court in sustaining the appellee's demurrers to each of the paragraphs of complaint. Did the court err in either of these decisions? This is the question, and the only question presented for our decision by the record of this cause and the errors assigned thereon.

In the first paragraph of his complaint the appellant alleged that, at the December term, 1879, of the court below, a cause of action was pending therein wherein he was plaintiff and the appellee was defendant; that at said term the Honorable Francis Wilson was the regular judge of the court, but having been of counsel for appellee in such suit, he declined to preside at the trial thereof, and appointed the Honorable John L. Robinson, judge of the Fifteenth Judicial Circuit of this State, to try said cause; that, on the 17th judicial day of said December term, 1879, of said court, Judge Robinson appeared therein in pursuance of his appointment, and proceeded to the trial of said cause; that a jury was empanelled under the direction of Judge Robinson, and the hearing of evidence begun in said cause; that during such trial, and before the hearing of evidence was concluded, Judge Robinson left the court room and departed for his home in Spencer, Owen county, Indiana, and ordered and verbally appointed A. C. Voris, Esq., an attorney of such court, to take charge of the trial of said cause as the judge thereof; that at and prior to the time of such appointment of said Voris by Judge Robinson, the said Voris was of counsel for and as such had been consulted by the appellee, the defendant in said cause; that the appellant at the time protested against the appointment of said Voris, and against the said Voris acting as judge in the trial of said cause; that said Voris was not appointed judge in the trial of said cause by any order of the court, nor by agreement of the parties to said cause, nor in any manner in writing; and that the said Voris did not, after his verbal appointment as such judge, take any oath of office in the premises.

The appellant further alleged, that the said Voris, after his verbal appointment as such judge, took charge of said cause and proceeded to hear the evidence and received the verdict of the jury therein against the appellant, all of which was done over the protest of the appellant and his attorneys trying the cause; that, on receiving the verdict in said cause, the said Voris, as such pretended judge, then and there adjourned the court to the 26th day of January, 1880, and ordered the further trial of said cause to be set down on that day, in a pretended adjourned term of the court; that afterwards, on the day last named, Judge Robinson re-appeared in said cause, as the pretended judge thereof, without any further appointment than the one originally given him at the December term, 1879, of the court, and the said Voris, under his pretended appointment as judge of said court, rendered judgment against the appellant for costs, and in appellee's favor, upon the verdict; that, by reason of the facts therein alleged, the appellant was prevented from having a fair trial of his said cause; and that the pretended appointment of the said Voris, and all the subsequent proceedings in said cause, were illegal and void. Wherefore the appellant prayed that the verdict of the jury and the judgment thereon, in said cause, might be vacated, declared void and held for naught, and that the original cause be re-docketed for trial, and for all other proper relief.

The second paragraph of the complaint contains substantially the same allegations of fact as the first paragraph, except that it is nowhere averred in the second paragraph that Judge Robinson's appointee, A. C. Voris, Esq., was of counsel for, or had been consulted by, the appellee, the defendant in the original cause, or that the appellant protested or objected to the appointment of Voris to preside as judge on the trial of said cause, or that Voris was not appointed in writing, and did not take the oath of office, as judge of the court in said cause.

We are of opinion that the court committed no error in sustaining the appellee's demurrers to each and both of the paragraphs of appellant's complaint. It will be observed that it is nowhere alleged in either paragraph of the complaint, that any of the alleged facts, upon or by reason of which the appellant seeks, in this action, the vacation of the judgment in the original cause, are shown in any manner by the record of such judgment. In the absence of any such allegation, this court must presume and assume in favor of the proceedings of the circuit court, that none of the alleged facts are shown by, or are apparent upon the face of the record of the original cause. In other words, in the absence of any averment impeaching or attacking the record of the original cause, for matters apparent upon its face, we must assume that the record of the proceedings and judgment, sought to be vacated, is regular and formal in every particular, and that...