142 N.E. 719 | Ind. Ct. App. | 1924
Suit by appellant against appellee on a promissory note executed as a part of the purchase *38 price of farm machinery, and to foreclose a chattel mortgage given to secure the payment of the note. Appellee answered: (1) Denial; and (2) failure of consideration. Appellee also filed a cross-complaint setting forth that, contemporaneously with the sale of the machinery and the execution of the note and mortgage sued on, appellant by written instrument warranted the machinery, and agreed that if it failed to do the work for which it was purchased, appellant would take it back, cancel the note and mortgage, and return to appellee a cash payment of $500; that the written instrument is not made a part of the cross-complaint as an exhibit or otherwise, for the reason that the same is now in the hands of appellant who refuses to give it up; that the machinery did not do the work as warranted, and is worthless; that appellee is entitled to the cancellation of the note and mortgage, and the return of the cash payment with interest.
A demurrer to the cross-complaint having been overruled, and issues joined by denial to the affirmative answer and cross-complaint, there was a trial by court resulting in a finding against appellant on the complaint, and in favor of appellee on his cross-complaint.
At the close of the term of court at which the cause was tried, and while a motion for a new trial was pending, the official term of the judge who had heard the cause expired, and he was succeeded by another. The newly-elected judge being disqualified by reason of his previous connection with the case as attorney, the former judge whose term of office had just expired was, by agreement of the parties, appointed and qualified as special judge, and, as such, overruled appellant's motion for a new trial, and rendered judgment for appellee.
The action of the court in overruling the demurrer to the cross-complaint is first urged as a cause for reversal. *39
The only objection presented by the memorandum which 1. accompanies the demurrer is that the written contract of warranty is not set out as a part of the pleading as an exhibit. It is well settled that when a pleading is founded upon a written instrument, the original or a copy thereof must be filed with the pleading, or the pleading must contain averments showing sufficient excuse for the failure so to do. AndersonSchool Tp. v. Thompson (1883),
After the close of the term of court at which the motion for a new trial was overruled and final judgment was rendered, appellee filed a motion to correct the record of the judgment by nunc protunc entry, and served notice thereof upon one of appellant's attorneys of record who acknowledged the service as "plaintiff's attorney." Over appellant's objection made by the attorney on whom the notice had been served, and who had entered his special appearance, the motion was heard by the special judge, resulting in an order directing the correction to be made. Assignments of error challenge the right to correct the record after the close of the term at which the judgment was rendered, the sufficiency of the notice to confer jurisdiction over appellant, and the authority of the special judge to hear and determine the question presented by the motion.
Whenever the record of a cause shows that court proceedings were had of which no proper or sufficient entry *40
was made by the clerk, it is within the powers, and it is 2-5. the duty, of the court, upon proper application and notice, to supply such omission by a requisite nunc protunc entry; and this power does not cease with the term of court at which the proceedings took place. Smith v. State (1880),
Where, pursuant to § 427 Burns 1914, § 415 R.S. 1881, a special judge is appointed to hear and determine a *41
designated cause, such special judge, having qualified, 6. acquires exclusive jurisdiction of the case throughout all of its stages, with substantially the same powers as to that case as the regular judge would have had. Perkins v.Hayward (1890),
The decision of the court is sustained by the evidence.Affirmed.