State ex rel. Gearhart v. Smith
| Decision Date | 29 November 1960 |
| Docket Number | No. 29983,29983 |
| Citation | 241 Ind. 154,170 N.E.2d 423 |
| Parties | STATE of Indiana on the Relation of Jerome GEARHART and Alice Rozhon, Relators, v. Alban M. SMITH, as Special Judge of the Starke Circuit Court; and the Starke Circuit Court, Respondents. |
| Court | Indiana Supreme Court |
James E. Keating, South Bend, Orville W. Nichols, Knox, for relators.
Paul Reed, Knox, for respondents.
This is an original action for writ of prohibition asking that respondent judge be prohibited from taking any further action in a cause in which he was selected as special judge, for the reason that he failed to appear and qualify within ten days after his appointment as required by Rule 1-12 of this Court. Respondent has filed return to relators' petition.
In the cause pending before the lower court it appears that the plaintiffs filed motion for change of judge and after submission of a panel of three names, the parties struck off two names and the respondent judge was then appointed as special judge on February 19, 1960. Respondent did not appear and qualify until May 18, 1960. On June 22, 1960, respondent noted the filing of a proof of service of summons on the remaining defendant and upon the plaintiffs' filing of written interrogatories, ordered the defendants to file objections or answers thereto on or before August 29, and further ordered the defendants to answer the amended complaint on or before July 25, 1960, and set the cause for trial for November 7. Defendants-relators on July 13, 1960, appeared specially and moved to strike out the entries and orders of June 22 on the ground that respondent judge had no authority to make such entries as he had not qualified within the ten day period prescribed by Rule 1-12 for special judges to qualify. Defendant-relators also filed objections to respondent judge sitting as special judge in view of his failure to qualify within ten days.
The question here presented involves the construction of Rule 1-12 of this Court providing in part as follows:
'If a special judge selected by any of the means aforesaid shall not within ten days after his appointment appear and qualify, his failure so to do shall revoke his appointment and it shall be the duty of the presiding judge, or if there be none, the regular judge of the court, to select another as such special judge in the same manner as is herein provided for the original selection of the special judge.' (Emphasis supplied.)
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Kindred v. State
...must appear and qualify was intended to expedite the selection of special judges and minimize delay of trial. State v. Smith (1960), 241 Ind. 154, 156, 170 N.E.2d 423, 424. When a party timely raises the question of authority of a special judge and the judge has failed to appear and qualify......
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Taylor v. State, 485S180
...judge who has not qualified within ten days after his appointment, the subsequent acts of that judge are void. State ex rel. Gearhart v. Smith (1960), 241 Ind. 154, 170 N.E.2d 423. Inasmuch as Judge Green was appointed special judge on January 27, he had ten days thereafter to appear and qu......