6 N.E.2d 936 | Ind. | 1937
This is an appeal taken from exceptions to a final report filed by John H. Eisenhut, as executor of the will of George Harker, deceased.
The errors assigned are: (1) The court erred in hearing said cause; (2) The court erred in refusing to grant a change of venue from the county on the filing of the proper affidavit; and (3) The court erred in overruling appellants' motion for a new trial.
The first question that confronts us is whether the bill of exceptions is properly in the record. The motion for a new trial was overruled on the 29th day of January, 1936, and what 1-4. purports to be a bill of exceptions was filed April 24, 1936, at another term of court than when the motion for a new trial was overruled. No time was given to file a bill of exceptions and when a bill of exceptions containing the evidence is to be filed after the term, leave therefor must be given by the court at the time of the ruling on the motion for a new trial. Taylor v. State (1921),
"That in any action, proceeding, or matter, of any character or nature whatever, relating to, connected with or involving the estate of a decedent in any manner whatever, any of the parties thereto shall be entitled to change of judge or a change of venue from the county for the same reasons, and upon the same terms and conditions, upon which there may be a change of judge or a change of venue from the county on any civil action: Provided, however, That nothing herein contained shall be construed to authorize a change of venue from the county of the administration of the estate of a decedent, or to authorize a change of venue from the county upon the exceptions to the final report of an administrator or executor, and hereafter there shall be no change of venue from the county upon exceptions to the final report of an administrator or executor."
So it is clearly seen that the motion for a change of venue from the county was properly overruled.
The appellant attempts to present in his first assignment of error that "the court erred in hearing said *70
cause." The question is not properly presented, but, 5, 6. even if it were, there is no available error. The record shows that Judge John L. Summers, the regular judge, disqualified himself, and, pursuant to the statute, nominated three attorneys from which the appellants and appellees could select one to try the case. Each side struck one name and Herbert T. Rader, one of the parties named, was selected as special judge. If the appellants had any reason why Herbert T. Rader was not qualified to hear the case, they could, in the first instance, have struck his name from the list selected, and, in the second place, they could have taken a change of venue from him. They did neither and it is now too late to complain. "If a party, knowing of a valid objection to a proceeding, neglects to avail himself of it, and stands by or participates therein until a result is reached adverse to his interests, it is but justice that he should bear the consequences which his own folly has suffered to occur." State v. Gilkison (1935),
We have found no available error in the record and therefore the judgment must be affirmed.
Judgment affirmed.
