Snurr v. State.

• Citation: 4 N.E. 445,105 Ind. 125
• Parties: Snurr v. State.
• Decision Date: 26 January 1886
• Court: Supreme Court of Indiana

105 Ind. 125

4 N.E. 445

Snurr

v.State.

Supreme Court of Indiana.

Filed January 26, 1886.

Appeal from Whitley circuit court.

Sinclair & Hanna, for appellant.

C. M. Dawson and F. T. Hord, for appellee.

ELLIOTT, J.

On the twenty-second day of September, 1883, the Whitley circuit court, then being regularly in session, entered an order directing that an adjourned term be held, commencing on the twenty-ninth day of October, 1883, and notice was given of the adjourned term according to law. The time fixed in the order was a time when, under the provisions of the statute, the court in Kosciusko county might be in session; and Kosciusko county, in conjunction with Whitley county, constituted the Thirty-third judicial circuit. The court in the former county was actually in session on the twenty-third day of October, 1883, and continued in session during the time the trial of the appellant was in progress; the judge of the Thirty-third circuit having appointed a special judge to hold that court. The adjourned term of the Whitley circuit court, at which the appellant was tried, was held by the duly-elected judge of that circuit. The appellant entered into trial without any objection, and made none until after verdict, and then, for the first time, presented the question of the authority of the judge of the Thirty-third judicial circuit to hold the adjourned term. The statute fixes the time for holding the courts in the Thirty-third circuit, and we know judicially that the September term, 1883, of the Whitley circuit court began on Monday, September 3d, and ended on the twenty-second day of that month. We know, also, that the September term of the Kosciusko circuit court began on the Monday following the close of the Whitley circuit court, and, as the term of the latter court began on the day named, Monday, September 24, 1883, it had been in session five weeks when the judge convened the adjourned term pursuant to the order previously made, and in accordance with the notice duly given. The statute provides that the length of the term of the Kosciusko circuit court shall be seven weeks, “if the business thereof requires it;” but there is no command that it shall continue for that length of time. The statute cannot be regarded as absolutely fixing the term at that period, for it declares that it shall continue for that length of time upon condition that the business shall require it.

The question whether the business requires that the full term of seven weeks shall be occupied is one to be decided by the judge, for it is not determined by any provision of the statute. Casily v. State, 32 Ind. 62;Swails v. Coverdill, 21 Ind. 271. As the decision of the question as to the length of time that the court shall sit is committed to the judge, his judgment must settle the question; and even if it be conceded that it is a decision that can be reversed on appeal, there must be an objection and an exception in order to present any question for review, for his decision can in no event be anything more than erroneous. This reasoning leads us to the conclusion that the judge was not bound to sit the full period of seven weeks in Kosciusko county, but might abridge the term by an adjournment. It was therefore within his power to shorten the term of that court, and if he exercised this authority directly by an order of adjournment, or indirectly by opening an adjourned term in another county of his circuit, it would seem to logically result that the adjourned term would be the one regularly held, and the term left to be held by the special judge be the one that was irregularly held. It is difficult to perceive why the adjourned term, held pursuant to an order made in regular session, and held by the duly-qualified judge himself, should not be deemed the legal term; but we do not find it necessary to go to that extent in this case, for it is sufficient for our present purpose to declare that the judge of the Thirty-third circuit had authority to abridge the term of the Kosciusko circuit court, and that, as he did have this authority, his act in appointing an adjourned term of the Whitley circuit court was not void. Where a court has general authority over a class of cases, or a general subject, a ruling or order made by it is not void, although it may be erroneous. As said in Snelson v. State, 16 Ind. 29: “But the power to decide at all carries with it the power to decide wrong as well as right.” Lantz v. Maffett, 102 Ind. 23;Quarl v. Abbett, 102 Ind. 233, see p. 239; S. C. 1 N. E. Rep. 476. The authority to shorten the length of the term in Kosciusko county carried with it the authority to create a vacation by ending that term; and whether the court did or did not err in deciding that there should be a vacation in the Kosciusko circuit court on and after October 29th, or whether it did or did not make a mistake in the procedure adopted, is immaterial; for, no matter how much there is of error in the proceedings of a superior court, the proceedings are not void unless the court transcends its jurisdiction. We need not inquire what the rule would be if the statute had positively fixed the length of the terms of the Kosciusko circuit court at seven weeks, for the term was not definitely fixed, but its duration, within the limits prescribed, was left to be determined by the court itself. The utmost that can be granted the appellant is that the adjourned term was held under an order erroneously made. It cannot be declared that it was held without any authority whatever, and unless it was so held the proceedings were not void.

There is high authority for the proposition that, independent of a statutory warrant, courts of superior jurisdiction have authority to hold adjourned terms. Mechanics' Bank v. Withers, 6 Wheat. 107;Harris v. Gest, 4 Ohio St. 469;Casily v. State, supra. We have, however, a statute authorizing courts to appoint adjourned terms, and a court assuming to act under that statute cannot be said to act without color of authority, although it may proceed erroneously.

The only possible objection to the proceeding of the court in this instance is that it fixed the time for holding the adjourned term at a time when another court in the same circuit might have been in session; but as the term of the other court might have been abridged by the order of the judge so that it would not have been in session at the time fixed for the adjourned term, and as the order for the adjourned term was made while the court was lawfully in session, and under a statute conferring authority to hold adjourned terms, the order for holding that term cannot be regarded as void. The utmost that can be justly said in impeachment of that order, and the acts done under it, is that they were erroneous, since the mistake, if mistake there was, consisted solely in wrongly deciding upon the force and effect of the statute.

We do not controvert the general doctrine that a court cannot be held at a time when there is clearly no authority to hold it, nor do we impugn the general doctrine that it is error to hold two courts in the same circuit at the same time, where there is no statutory provision authorizing it. Cain v. Goda, 84 Ind. 209;Batten v. State, 80 Ind. 394;McCool v. State, 7 Ind. 378;Dunn v. State, 2 Ark. 229;In re Millington, 24 Kan. 214;Garlick v. Dunn, 42 Ala. 404; Freem. Judgm. § 121. It is not necessary to question the soundness of the general doctrine stated, for here there was power in the court to create a vacation by an order, and there was also power to order an adjourned term; so that here there is no question as to the existence of power in the court to make a decision, but the sole infirmity in the proceedings relates to the mode of exercising the power residing in the court. In every case in which a court makes erroneous ruling, there is a wrongful exercise of authority; but such a wrongful exercise of authority does not render the proceedings void, although it does make them erroneous. The question of power or authority might, perhaps, have arisen had the adjourned term been fixed at a time when the law imperatively required that the Kosciusko circuit should be in session; but its adjourned term was not fixed at a time when that court was required to be in session. On the contrary, it was fixed at a time when the judge might rightfully have adjourned that court. This feature is a prominent one, and distinguishes the case from such cases as that of In re Millington, supra. If the judge had made the proper order declaring the Kosciusko circuit court adjourned after five weeks of the term had expired, as he undoubtedly might have done, there could have been no question as to the regularity of the adjourned term held by him in Whitley county, and the error in this respect, while it might, perhaps, have been available had objection been seasonably made, cannot be deemed to render the order for the adjourned term void; and, if that order was not void, the trial at that term was not a mere nullity. Casily v. State, 32 Ind. 62;Knight v. State, 70 Ind. 375;Labadie v. Dean, 47 Tex. 90;State v. Clark, 30 Iowa, 168;Cook v. Smith, 54 Iowa, 636; S. C. 6 N. W. Rep. 259, and 7 N. W. Rep. 16.

Principle and authority logically lead to the conclusion that nothing worse can be said of the adjourned term than that it was irregularly held. It cannot be justly affirmed that it was held without color of authority. In the case of State v. Knight, 19 Iowa, 94, it was held that a judge might continue a term of court into the time fixed by law for holding a court in the same district, and the earlier cases of Davis v. Fish, 1 G. Greene, 406; S. C. 48 Amer. Dec. 387, see note p. 392; and Grable v. State, 2 G. Greene, 559,-were in effect overruled. It was held by the same court in Weaver v. Cooledge, 15 Iowa, 244, that a judgment rendered three days after the time fixed for the commencement of another court in the same district was not void; and in ...