Shugart v. Miles

• Decision Date: 17 October 1890
• Docket Number: 14,967
• Citation: 25 N.E. 551,125 Ind. 445
• Parties: Shugart et al. v. Miles et al
• Court: Indiana Supreme Court

25 N.E. 551

125 Ind. 445

Shugart et al. v. Miles et al

No. 14,967

Supreme Court of Indiana

October 17, 1890

From the Sullivan Circuit Court.

Judgment affirmed.

G. G Reily, for appellants.

J. E McDonald, J. B. Elam, S. N. Chambers, W. R. Gardiner, J. T Hays and B. M. Willoughby, for appellees.

OPINION

Elliott, J.

The appellees assert that there is no bill of exceptions in the record, and in support of their position affirm that a judge acting under a special appointment from the regularly elected judge has no power to sign a bill of exceptions after the close of the term which he was appointed to hold. Decisions are referred to in which it is held that a judge can not sign a bill of exceptions after the expiration of his term of office. Hedrick v. Hedrick, 28 Ind. 291; Smith v. Baugh, 32 Ind. 163; Ketcham v. Hill, 42 Ind. 64; Lerch v. Emmett, 44 Ind. 331; State, ex rel., v. Murdock, 86 Ind. 124; Bowlus v. Brier, 87 Ind. 391. These cases are not decisive of the question before us, for the question is, not as to what a judge whose official term has expired may do, but what a special judge acting under an appointment from the duly elected judge may do in cases tried by him. To give the cases cited controlling force in this instance, it is necessary to prove that a special judge who has heard the evidence in a cause and given judgment stands in the same position as a judge whose term of office has expired. We can perceive no tenable ground upon which to plant a conclusion that the positions are the same, nor is there such an analogy as compels us to apply the doctrine of the cases cited to the case now at our bar. The doctrine is not so commendable in itself as to induce us to extend it, for it does sacrifice, in some measure, at least, substance to technical consistency, since no one can doubt that it is only the judge who tries the cause that can give an accurate and intelligent bill of exceptions from his own knowledge, as any other must get his information at second hand. There is sound reason for liberality where the object is to secure a record of facts from a judge who has direct knowledge, but no reason for liberality where the sole object is adherence to imagined or real technical consistency. We decline to extend the doctrine of the former decisions.

Our Constitution expressly provides for the appointment of special judges. Constitution, section 10, article 7. By a long line of decisions this constitutional provision has been held to authorize the appointment of special judges by the regularly elected judge. When a person is put in the place of a judge the Constitution, as the source of judicial power, vests him with judicial functions and authority. State, ex rel., v. Noble, 118 Ind. 350, 21 N.E. 244; People, ex rel., v. Maynard, 14 Ill. 419. This constitutional investiture is so ample as to enable one who fills the position of a judge according to the provisions of the Constitution (and he can not rightfully fill the place otherwise than in accordance with the Constitution), to discharge all the judicial duties pertaining to the place he occupies. To fully discharge his judicial duties, one who occupies the place of a judge by appointment made under the Constitution, and pursuant to the laws enacted by its authority, must have a right to settle and seal a bill of exceptions in a case tried by him, otherwise he can not fully perform the duties with which the Constitution vests him. Until a bill of exceptions is signed his duties are not fully performed. There is no break in the line of connection between the matters which occur during the time the special judge has full jurisdiction of the cause, and the signing of a bill of exceptions, for the reason that leave to take and file a bill must be asked and obtained at the time the rulings are made, and signing a bill tendered in compliance with the leave granted is no more than the legitimate consummation of the order which the special judge had full authority to make. None other than the special judge can rightfully make the order, and it is inseparably woven with the proceedings controlled and directed by him. The order of granting leave to file a bill, and the signing of the bill, are in effect but parts of one completed whole. Unless there be authority to complete what has been ordered the order is fruitless and vain. No order which a judge, regular or special, has authority to make, can be justly regarded as a mere barren declaration. To hold that the regular judge must sign the bill is to affirm that one judge, who has personal knowledge of the facts, shall make an order for the statement of those facts by another judge who personally knows nothing at all of the facts. Such a result is clearly opposed by reason and justice. Its vice is exposed in its intensity when it is brought to mind that the statements of a bill of exceptions import absolute verity. If our reasoning is not fallacious it would seem to logically follow from the premises it establishes that it is not within the power of the Legislature to deprive a judge, regular or special, who holds his position under the Constitution and the laws, of the right to settle and sign bills of exceptions ordered in cases rightfully tried by him; but we need not go to the length of holding that the Legislature has no such power, nor do we, for, as we construe our statute, the Legislature, instead of denying the right of a special judge to sign a bill of exceptions, has impliedly declared that he has authority to do so. Our construction of the statute is that where a special judge is duly appointed to hold a part of a term his powers and duties in all cases tried by him are substantially the same as those of the judge elected in due course of law. In this conclusion we are supported by closely analogous cases. Perkins v. Hayward, 124 Ind. 445, 24 N.E. 1033; Staser v. Hogan, 120 Ind. 207, 21 N.E. 911 (228); Beitman v. Hopkins, 109 Ind. 177, 9 N.E. 720; Wilson v. Piper, 77 Ind. 437 (440); Lerch v. Emmett, supra.

If our construction of the statute and our reasoning are correct, then there can be no doubt that where a special judge rightfully grants leave to file a bill of exceptions, and fixes a time within which it shall be filed, the bill, when signed and duly filed, becomes part of the record.

The second question presented for our consideration is whether the bill of exceptions and the record entries in this cause are so framed as to bring the case before us under the provisions of section 630 of the code of civil procedure. In other words, the question is whether the appellants have secured such a record as entitles them to have the questions of law considered by this court, under the provisions of that section, for it is only questions of law that can be thus presented, and they can only be presented as the statute directs. Fouty v. Morrison, 73 Ind. 333.

By our decisions and our rules we have already indicated that our judgment is that the statute should be liberally construed. Mercer v. Corbin, 117 Ind. 450, 20 N.E. 132; Jones v. Foley, 121 Ind. 180, 22 N.E. 987. For this conclusion there are sound reasons. The statute is in furtherance of justice--it is remedial; it tends to simplify procedure; it lightens the burdens of litigants without injustice to any one, and, when properly followed, questions may be presented to this court unclouded by a mass of useless verbiage, and unobscured by voluminous matters of immaterial evidence. As we decide only questions of law, the clearer those questions are presented the better; and it is seldom that all the evidence is required to present such questions. But while this is true, it is also true that in the absence of countervailing facts the presumptions are in favor of the rulings of the trial court; and hence, the record must be so made up as to clearly show the rulings to exclude the presumption referred to, and to make it affirmatively appear that the rulings were harmful to the appellant. Perkins v. Hayward, supra; Downs v. Opp, 82 Ind. 166; Indiana, etc., R. W. Co. v. Adams, 112 Ind. 302, 14 N.E. 80; Conner v. Town of Marion, 112 Ind. 517, 14 N.E. 488. It is likewise true that in order to avail himself of the provisions of the statute referred to, the appellant must show that he notified the trial court that he desired to appeal under its provisions, and he must make the record show an appeal upon reserved questions of law. Short v. Stutsman, 81 Ind. 115; McCoy v. State, ex rel., 121 Ind. 160, 22 N.E. 986; Jones v. Foley, supra. So, too, he must, where the questions arise upon the trial, bring them before the trial court for review. Conner v. Town of Marion, supra, and cases cited. Giving to the statute a liberal construction, and keeping in mind the decisions to which we have referred, we proceed to ascertain and decide whether the record is so made up as to bring the case within the provisions of the statute.

The bill of exceptions contains this recital: "Be it known that on the 9th day of June, 1888, the jury in the cause returned into court their general verdict, and answers thereto, and thereupon the plaintiffs filed their motion for a new trial herein, and reasons therefor, and the plaintiffs thereupon notified the court that in case the motion for a new trial should be overruled they intended to take the question of law presented and reserved on the trial and set forth in their motion, to the Supreme Court upon a bill of exceptions only." This recital shows the intention to take the case up on a reserved question of law and it shows, also, that the trial court was given timely notice of that intention. There was ample notice for the parties and the court to take steps to secure and frame the bill of exceptions, for the notice was given prior...