102 Ind. 33 | Ind. | 1885
The only error assigned by the appellant, the plaintiff below, upon the record of this cause, is the sustaining of the defendants’ demurrer, for the want of sufficient facts, to his complaint.
Appellant Rogers alleged in his complaint that during the year 1881 Hon. Harvey H. Scott was the regular judge of the Vigo Circuit Court, of Vigo county, in this State ; that during the vacation of such court preceding its September term, 1881, Judge Scott was sick in Battle Creek, in the State of Michigan, and was thereby unable to return to this State or to hold the September term, 1881, of such court; that, in order that the court should not lapse, by reason of his sickness and absence, Judge Scott wrote to I. N. Pierce, Esq., an .attorney of such court, informing him of such sickness, and
And the appellant further alleged that at the September term, 1881, of such court, there was an action pending wherein the appellee Beauchamp was plaintiff and the appellant Rogers was defendant; that the appellant and his attorneys in such action, being ignorant of the manner of Cruft’s appointment as judge of such court, or of any of the circumstances above stated, except so far as they may be constructively charged
Appellant further alleged that appellee Beauchamp had caused an execution to be issued on such void judgment, which writ was then in the hands of appellee, John Cleary, as sheriff of Vigo county; and that Cleary, as such sheriff, was about to levy such execution on the property of the appellant, to his irreparable injury. . Wherefore, etc.
The appellees’ counsel has not favored this court with any brief or argument in support of the decision below sustaining their demurrer to the foregoing complaint; but counsel has left us to find out, if we can, the grounds, if any, upon which such’ decision can be sustained. We may remark in the outset, that we can perceive no sufficient reason, and none is stated, for the commencement of this suit in the superior court of Vigo county. The objects of the suit, as shown by the complaint, were to have a judgment of the Vigo Circuit Court, a court of at least equal, if not superior, dignity to' such superior court, annulled and declared void, and the collection. of an execution issued on such judgment enjoined, by the decree of the superior court. It is true that the jurisdiction of the superior court of the subject-matter of this suit was not called in question below, nor is it questioned here in any manner, by any assignment of error or cross error, or otherwise. But the question is in the record, and while we are not required to decide it as the case is presented, yet we do not wish it to appear that the question escaped our notice. While we do not decide the question, it is not improper for us to say that the jurisdiction of the superior court of Vigo
Waiving this point, however, we are of opinion that the appellant’s complaint, if his suit had been instituted in the proper court, does not state facts sufficient to constitute a cause of action,, or to entitle him to the relief demanded therein. It will be observed that in his complaint the appellant seeks to have the judgment against him, therein described, annulled and declared void by the allegation of facts and circumstances not apparent on the face of the judgment, but wholly dehors the record. Such a complaint makes a collateral attack on the judgment described therein, and is bad on demurrer for the want of sufficient facts. This is settled by many decisions of this court. Pressler v. Turner, 57 Ind. 56; Reed v. Whitton, 78 Ind. 579; Oppenheim v. Pittsburgh, etc., R. W. Co., 85 Ind. 471; State, ex rel., v. Murdock, 86 Ind. 124; Smith v. Hess, 91 Ind. 424; Reid v. Mitchell, 93 Ind. 469; Young v. Wells, 97 Ind. 410; Dowell v. Lahr, 97 Ind. 146.
In the case in hand the appellant seeks to have the judgment against him annulled and declared void upon the ground that the Vigo Circuit Court lapsed for the want of a judge, and was not in session during its September term, 1881, when such judgment was rendered. Of course there can not be a court without a judge. But it is not claimed that the record shows there was no judge present during the term. On the contrary, it is stated in the complaint that the record does show that Harvey D. Scott, judge of the Vigo Circuit Court, “ being unable by reason of sickness to preside at the September term, 1881, of such court,” did appoint in writing “Charles Cruft, an attorney of such court, to preside and hold the said term of such court; ” that Cruft accepted such appointment, and took and subscribed the oath required by law; that on the first day of such September term Cruft caused his written appointment and oath to be entered on the order-book of such
Judge Scott’s appointment of Charles Cruft, as judge pro tempore was fully authorized by the provisions of section 4 of the act of March 1st, 1855, providing for the holding of terms, etc., of courts “ when the judge is absent or unable to attend” (Acts 1855, p. 61.; 2 R. S. 1876, p. 10), which section of the statute we have held and yet hold to be in full force. Zonker v. Cowan, 84 Ind. 395; State, ex rel., v. Murdock, supra. As entered upon the order-book Cruft’s appointment was in all respects regular. In Case v. State, 5 Ind. 1, the court said : “ The appointment constitutes a part of the record. It appears in legal form, and gave to the appointee at least a colorable title to the office. He was no usurper, but supposed himself to be rightfully invested, and acted in good faith. A court defacto, it not dejure, was thus constituted.” In Feaster v. Woodfill, 23 Ind. 493, it was held that “ when the appointment is regular on its face, the objection must be made at the trial, or all objections to the authority of such appointee will be deemed waived.” In State, ex rel., v. Murdock, supra, it is said: “ If such appointee holds under color of right he is, while so holding, a judge defacto, and the validity of his acts can not be questioned by a party, for the first time, in a collateral attack.” Our conclusion is that the demurrer to the complaint was correctly sustained.
The judgment is affirmed with costs.