The Louisville, New Albany & Chicago Railway Co. v. Power

• Decision Date: 04 June 1889
• Docket Number: 13,201
• Citation: 21 N.E. 751,119 Ind. 269
• Parties: The Louisville, New Albany and Chicago Railway Company v. Power
• Court: Indiana Supreme Court

21 N.E. 751

119 Ind. 269

The Louisville, New Albany and Chicago Railway Company v. Power

No. 13,201

Supreme Court of Indiana

June 4, 1889

From the Hamilton Circuit Court.

Judgment affirmed.

G. W Easley, S. O. Bayless and W. H. Russell, for appellant.

D. W Patty, R. R. Stephenson and W. R. Fertig, for appellee.

OPINION

Elliott, C. J.

The counties of Hamilton and Madison constituted the twenty-fourth judicial circuit at the time this action was tried. On the 29th day of the regular November term, 1885, an order was made reciting that the judge of the court had been an attorney in many cases, and directing that an adjourned term of the court be held, commencing on the first Monday in January, 1886. Notice was given according to law. At the time the order was made the defendant's counsel were in court, and, as the bill of exceptions recites, "knew of the time and manner determined upon for holding the adjourned term, and of the appointment of Judge Goodykoontz to hold the same, and knew that this cause had been set down for trial at the adjourned term, and made no objection, but tacitly consented thereto; and that counsel for defendant did not, nor did any other person, give any notice or intimation that the defendant would object to the trial being had at the adjourned term before Judge Goodykoontz until the cause had been called for trial and both parties were present with their witnesses; and, further, the defendant's counsel were present at the adjourned term at a day previous to the trial, and at the time when the day for the trial was fixed by Judge Goodykoontz and the case placed on the calendar for trial, and offered no objections of any kind whatsoever." The only objections interposed are set forth by the reporter in his report of the evidence.

It is here insisted that as the time appointed for the adjourned term fell within the time for holding court in the county of Madison, the adjourned term could not be legally held in the county of Hamilton. The appellee insists that the question is not presented, because the objections appear only in the reporter's long-hand manuscript, and that the statute does not authorize the reporter to note such objections. We are referred to sections 1405 and 1407, R. S. 1881, which seem to support the appellee's contention, but we do not deem it necessary to decide this point. Nor do we deem it necessary to decide whether, if there had been opposition instead of acquiescence, the appellant could have successfully maintained the proposition that the adjourned term of the Hamilton Circuit Court was illegally held, for we are satisfied that by acquiescence the appellant waived the right to object. There was color of authority, at least, for holding the adjourned term; the court assumed to act under the law, and as the appellant acquiesced, it is not now in a situation to successfully assail the proceedings. If there had been no color of authority for holding the adjourned term it might be different, but there is a law authorizing courts to hold adjourned terms, and to fix the time for holding them; and under this law the court acted, with the acquiescence of the defendant, so that the adjourned term was not held wholly without warrant of law, and, even if it be conceded that the term was irregularly held, the proceedings were not absolutely void. Smurr v. State, 105 Ind. 125, 4 N.E. 445, and authorities cited. There are provisions in the statute which declare that adjourned terms may be held, and that an adjourned term, "presided over by a judge appointed for that purpose, may be extended so as to include the time set apart for the court in any other county of that circuit." If, therefore, there was an error, there was not an entire absence of power, since the utmost that can be said, if, indeed, so much can be said, is, that the court erred in deciding a question of law which it had authority to decide, and such an error may be...