State ex rel. Hodshire v. Bingham

• Decision Date: 05 May 1941
• Docket Number: 27531.
• Citation: 33 N.E.2d 771,218 Ind. 490
• Parties: STATE ex rel. HODSHIRE v. BINGHAM, Circuit Judge.
• Court: Indiana Supreme Court

33 N.E.2d 771

218 Ind. 490

STATE ex rel. HODSHIRE v. BINGHAM, Circuit Judge.

No. 27531.

Supreme Court of Indiana

May 5, 1941

Craig & Craig, of Brazil, and Ernest M. Wright, of Terre Haute for relator.

M C. Wiggins, of Newport, Mark W. Lyday, of Clinton, and Aikman, Miller & Causey, of Terre Haute, for respondent.

SHAKE Judge.

This is an original action to mandate the regular judge of the Vermillion Circuit Court to grant a change of venue from the county in a civil suit. The regular judge appointed a 'Judge Pro Tempore to preside and hold said court from November 13th, 1939 to November 18th, 1939, both inclusive,' on account of the absence of the regular judge from the county. Between said dates the judge pro tempore presided at the trial of a civil case which resulted in a verdict for the defendant. After the expiration of the period for which he was appointed, the judge pro tempore entertained and granted a motion for a new trial which the regular judge subsequently struck out and expunged from the record. The plaintiff thereupon filed a motion and affidavit in proper form for a change of venue from the county, which was overruled by the regular judge.

If the judge pro tem. had authority to hear and grant the motion for a new trial after the expiration of the period for which he was appointed, the action is pending in the Vermillion Circuit Court and the plaintiff is entitled to a change of venue from the county.

It is to be noted that we are dealing with a judge pro tem. as distinguished from a special judge. A judge pro tem. is appointed for the term or some part thereof, during which time he exercises all the functions of the regular judge. § 4-316, Burns' 1933, § 1264, Baldwin's 1934. A special judge is appointed to act in a particular case and his authority continues until the same is finally disposed of unless the venue is changed. §§ 2-1424, 2-1425, Burns' 1933 (Pocket Supp.), §§ 207-1, 207-2, Baldwin's Supp. 1937.

The precise point with which we are presently concerned appears to have been before this court in Staser v. Hogan, 1889, 120 Ind. 207, 223, 21 N.E. 911, 916, 22 N.E. 990. In that case a jury trial was concluded on the last day of a term at which a judge pro tem. had presided. A motion for a new trial was filed on the first day of the succeeding term when the regular judge was present, but he declined to hear the motion and it was disposed of by the judge pro tem. over objections. On appeal this court inadvertently referred to the judge pro tem. as a special judge, but the gist of the decision is expressed in the following excerpts:

'It is contended by the appellants that the authority of Hon. R. D. Richardson to act in the case ceased with the term at which it was tried, and that his action in overruling the motion for a new trial and rendering judgment on the verdict was without authority and void.

'On the other hand, it is contended by the appellees that the said Richardson, having once acquired jurisdiction to hear and dispose of the case, retained such jurisdiction until the cause was finally disposed of.

'It must be manifest to every one that the regular judge could not intelligently hear and dispose of the motion for a new trial in this cause. * * *

'We think that, where parties voluntarily consent to try their cause before a special judge [judge pro tempore], they should be held as consenting to his making a final disposition of the same; for in the very nature of things no one else can intelligently dispose of it. We think that in such a case the provisions of section 415, Rev.St.1881, ^[1] should be held to apply, without regard to the reason for his appointment.' (Our italics.)

The respondent has called our attention to a number of cases which hold that upon the expiration of the term of a judge his authority ceases, and that if a bill of exceptions is called for in a case over which he has presided the successor judge is the proper party to settle and sign such bill. Among the cases so holding are Smith v. Baugh, 1869, 32 Ind. 163; Ketcham, Adm'x v. Hill, 1873, 42 Ind. 64; and Lerch, Adm'r v. Emmett, 1873, 44 Ind. 331. These cases were followed by the Appellate Court in Aetna Indemnity Co. v. Wassall Clay Co., 1912, 49 Ind.App. 438, 97 N.E. 562, in which it was held that a judge pro tem. had no authority after the expiration of his appointment to approve a bill of exceptions containing the evidence introduced at a trial over which he had presided.

It must be admitted that there is no consistency in holding that a judge pro tem. retains jurisdiction to pass upon a motion...