State ex rel. Kensinger v. Cox

• Decision Date: 23 October 1923
• Docket Number: No. 24457.,24457.
• Citation: 141 N.E. 225,193 Ind. 519
• Parties: STATE ex rel. KENSINGER v. COX, Superior Court Judge.
• Court: Indiana Supreme Court

193 Ind. 519

141 N.E. 225

STATE ex rel. KENSINGER

v.COX, Superior Court Judge.

No. 24457.

Supreme Court of Indiana.

Oct. 23, 1923.

Appeal from Superior Court, Vigo County.

Mandamus by the State, on the relation of Forest Kensinger, to compel John E. Cox, as Judge of the Superior Court of Vigo County, to sign a record entry reciting that a motion for new trial was filed, and also to sign a bill of exceptions reciting the evidence that was introduced and the rulings that were made in the trial of an election contest. Petition dismissed.

PER CURIAM.

Appellant filed a petition asking that a writ of mandamus be issued to appellee, as judge of the superior court of Vigo county, Ind., commanding him to sign a record entry reciting that a motion for a new trial was filed as hereinafter stated, and also to sign a bill of exceptions reciting the evidence that was introduced and the rulings that were made in the trial of an election contest in which relator was the contestor. It alleged that a decision was made and judgment rendered by said court against the relator as contestor of such election on the 10th of January, 1923; that on the 7th of February following relator caused his motion for a new trial with written reasons for the same to be filed and brought to the attention of appellee, as judge of said court, and that while in the performance of his duties as such judge, on that day, in open court, appellee ordered and directed the clerk of said court to file the same, and it was thereupon marked by the clerk with a file mark, which included the date and the signature of the clerk, and that the appellee at the same time entered in his “judge's entry docket” a statement that such motion for a new trial was filed, and that contemporaneously therewith the clerk made an entry in the order book of the court, under the title of said cause; that the contestor had filed such motion for a new trial; it is not expressly alleged, but is implied that said motion was thereupon placed on file with the papers of the case in said court; and it is alleged that a rule of that court was in force which provided that:

“All papers and pleadings except such as require permission or an order of the court shall be filed with the clerk, who shall make the proper minutes and entries on the court records.”

The petition further alleges that a week later, but before the order book entry referred to had been signed by the judge, on motion of the contestee in the election contest, supported by an affidavit of the deputy clerk to the effect that a special judge was on the bench trying another case when the motion for a new trial was delivered to such clerk, and that appellee, the regular judge, was not then in the courtroom, and that later in the same afternoon, when relator's attorney had gone from the courtroom, appellee came into said room, and the deputy clerk then handed the motion for a new trial to him, and the entries were made by appellee in his “judge's docket” and by the deputy clerk in the order book by direction of appellee, and that when the entries were made neither relator (the contestor) nor his attorney was present; that thereupon said motion of the contestee was sustained, and appellee, sitting as the court, entered an order that all minutes pertaining to the filing of said motion for a new trial be expunged from the records, and that the motion for a new trial be struck out; that afterward, at the next term of court, relator filed a motion for an entry nunc pro tunc as of the date when the motion for a new trial was so presented, reciting that in open court the contestor, by his attorney, delivered to the clerk for filing his said motion for a new trial; that it was examined by the court and by him ordered to be filed, and pursuant to such order was filed, but on motion of the contestee such petition for a nunc pro tunc entry was dismissed, and relator excepted; that 15 days after the motion for a new trial was so presented and marked as being filed, and at the same term, but after the order that it and all minutes of such filing be struck out, though more than 2 months before the petition for an entry nunc pro tunc was presented, the court granted relator 150 days in which to file a bill of exceptions; and that a bill of exceptions containing the evidence in the original action was prepared and offered for signing within the time allowed, but appellee refused to certify and sign it, and signed only a bill certifying to the facts above stated of the presentation of relator's motion for a new trial, the act of the clerk in calling the judge's attention to it, what the judge and clerk...