Rhoden's Estate, In re
| Decision Date | 20 November 1968 |
| Docket Number | No. 1267--A--111,No. 2,1267--A--111,2 |
| Citation | 143 Ind.App. 537,241 N.E.2d 800 |
| Parties | In the Matter of the ESTATE of Maude Tritt RHODEN, Deceased. Daniel WATKINS, Appellant, v. Robert J. McPEAK, as Administrator with Will Annexed of the Estate of MaudeTritt Rhoden, Deceased, Appellee |
| Court | Indiana Appellate Court |
Louis L. Anderson, South Bend, for appellant.
Robert J. McPeak, Terre Haute, for appellee.
This action was instituted in the Vigo Circuit Court by a petition filed by the appellee, Robert J. McPeak, Administrator of the Estate of Maude Tritt Rhoden for an order to sell certain of decedent's real estate to be used for the purpose of making distribution of the proceeds thereof to the heirs of the decedent; and to quiet title to said real estate against the claims of appellant, Daniel Watkins.
These proceedings were heard in the Probate Division of the Vigo Circuit Court before the probate commissioner, who, after the submission of all the evidence, entered his findings in favor of the appellee, which he submitted to the judge of the Vigo Circuit Court. Subsequent to the submission of the commissioner's findings, appellant's motion for new trial was denied by the Vigo Circuit Court judge, and the denial of said motion is the sole basis of this appeal.
However, it is our opinion that this appeal is not properly before this court and that we are prevented, therefore, from making a determination of this cause on the merits. The bill of exceptions containing the evidence adduced at the hearing by the probate commissioner was signed by the probate commissioner, and was not signed by the judge of the Vigo Circuit Court as required by Supreme Court Rule 1--9, which reads in part as follows:
'The judge who presides at the trial of a cause shall, if available, rule on the motion for a new trial, if one is filed, and shall sign all bills of exceptions, if such are requested.' (Emphasis supplied.)
A research of the decisions of our courts of appeal prior to the adoption of Rule 1--9 of the Supreme Court reveals that such a defect is not fatal to an appeal. Our Supreme Court in the case of Clark v. Van Court (1884), 100 Ind. 113, provided an early solution to the question of whether, on appeal, a bill of exceptions is properly before this court when signed by the probate commissioner. The Supreme Court in that case spoke as follows:
'Where, in a case like this, exceptions to a report require, on appeal, an examination of the evidence, it must be set forth in a bill of exceptions signed by the master commissioner.'
This court is of the opinion that this is no longer the law in Indiana, having been abrogated by Rule 1--9 of the Rules of the Supreme Court of Indiana. Supreme Court Rule 1--9 clearly stated that the judge presiding at the trial is the sole individual who is authorized to 'sign all bills of exceptions'.
A probate commissioner is not considered to be a judicial officer even though Burns' Indiana Statutes, § 6--159 (1953 Repl.) would seem to indicate that a probate commissioner has the authority to exercise quasi-judicial authority, as follows:
*'6--159 (3060) (1953 Repl.), Probate commissioners--Additional duties.--In all counties of this state, having a population of not less than thirty thousand (30,000) nor more than one hundred and fifty thousand (150,000) according to the last preceding United States census, it shall be the duty of the probate commissioner of the circuit court in any county, duly appointed as by law provided to hear evidence upon and report his finding to the judge of the circuit court of his county, upon all matters, probate, civil and otherwise, which may be referred to such probate commissioner by such judge of the circuit court, * * *'
However, our Supreme Court in Delaney v. Gubbins (1914), 181 Ind. 188, 104 N.E. 13, declared that ...
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