State Ex Rel. Harp v. Vanderburgh Circuit Court

Emmert, J. The controversy involved in this original action for a writ of prohibition grows out of the jurisdiction of a succeeding presiding judge of the Vanderburgh Circuit Court in a cause tried by the preceding judge, and the proper construction of Rule 1-9 of our court. 1 During the term of office of Judge Nat H. Young-blood, who was the regular presiding judge of the Vanderburgh Circuit Court until January 1,1949, there was pending Cause No. 1364 entitled William E. Harp v. August J. Greubel et al., for a declaratory judgment, and Cause No. 2850 entitled August J. Greubel et al. v. William E. Harp et al., for an injunction and damages, which causes were consolidated for trial before the court without a jury, and tried before the then regular presiding judge on March 31, and April 1, 1948, upon the conclusion of which they were then taken under advisement. *358 The petition for the writ alleges that on the 29th' day of December, 1948, in open court Judge Youngblood announced his findings in Cause No. 1364 and Cause No. 2850 for the relators in this original action, and directed their counsel to prepare written entries. There was no minute made in the court’s bench docket at the time the findings were announced.. The respondents contend that no notice of the announcement was given to counsel for the adversary parties in either cause, and that the entries containing the findings and judgments signed by the then regular judge on December 31, 1948, were invalid because at the time there was a judge pro tempore presiding in the Vanderburgh Circuit Court, and the entry was signed in the judge’s office in the court house; therefore, the succeeding regular presiding judge of such court, Judge Ollie C. Reeves, had jurisdiction to entertain and act upon petitions by the Greubels in causes No. 1364 and No. 2850 to vacate and annul the findings and judgments signed December 31st and ordered entered as of December 29th, the day the findings were announced. Séction 4-316, Burns’ 1946 Replacement (Acts of 1855, ch. 19, § 4, p. 61) makes provision for the appointment of a judge pro tempore for a circuit court. In part, it provides for, such appointment to be in writing, and that “Such written appointment shall be entered on the order-book of such court, and such appointee shall, after being sworn, if he be not a judge of a court of record, conduct the business of such court, subject to the same rules and regulations that govern circuit courts in other cases, and shall have the same authority, during the continuance of his appointment, as the judge elect, or making such appointment.” *359 *358 We take judicial notice of who the regular judges of the several judicial circuits are, and of the beginning of *359 terms of court. Heacock v. Arnold (1929), 90 Ind. App. 476, 169 N. E. 89. The December term of the Vanderburgh Circuit Court began the first Monday in December, and unless duly adjourned, continued until the first Monday in March, 1949. Section 4-332, Burns’ 1946 Replacement. From the certified copies of the various exhibits it appears the petitions to vacate and annul the findings and judgments were filed within the December term. However, we do not take judicial notice of the appointment and term of any judge pro tempore. That is- a matter of court record, which under § 4-316, Burns’ 1946 Replacement, must appear on the official records of that court. There is nothing in the petition and return in this action which states that any judge pro tempore was appointed in writing, or that any oath of office was ever executed or that such appointment and oath were duly entered in the order book. The practice in this court in original actions is to consider the verified petition and return as the evidence upon which relief is granted or denied. If there was a de jure judge pro tempore presiding in the Vanderburgh Circuit Court on December 31st, that was a matter of. defense which the verified return should have alleged, and in conformity with the practice in such cases, certified copies of the orders and entries pertaining thereto should have been set out or made exhibits to the return. In the absence of such evidence showing of record a duly appointed, qualified and acting judge pro tempore, this court must presume that the regular judge presided on December 31st. State ex rel. Eggers v. Brandsman (1932), 204 Ind. 238, 183 N. E. 653, and cases therein cited. Therefore, in this original action we are only concerned with the jurisdiction of the two regular *360 presiding judges, unaffected by a question of the jurisdiction of an intervening judge pro tempore. It is not contradicted that the trial judge orally in open court announced his findings in each of the two cases on December 29th. This was a judicial act which then cut off any right of dismissal. Section 2-901, Burns’ 1946 Replacement. A finding may be orally announced in open court. Sauer, Admx. v. Sauer (1921), 77 Ind. App. 22, 133 N. E. 169; Cohn v. Rumely (1881), 74 Ind. 120. It would have been better practice to have made minutes of the findings in the court’s bench docket minute book, which in case of any controversy after the term would have been written evidence sufficient for a nunc pro tunc entry. Cook v. State (1941), 219 Ind. 234, 37 N. E. 2d 63; In re Saric (1925), 197 Ind. 1, 149 N. E. 434. The announcement of a finding is analogous to the rendition of a judgment. “Generally, however, the courts pronouncement may be oral as well as written, as where it is announced from the bench.” 1 Freeman Judgments 80, § 48 (5th ed.). The signing of the findings on December 31st were mere ministerial acts of the judge which made a record of what he had previously judicially announced in open court. See Bailer v. Dowd (1942), 219 Ind. 624, 40 N. E. 2d 325. The fact that opposing counsel was not present in court when the findings were announced did not prejudice the rights of his clients, for his affidavit shows he learned of the matter the evening of December 31st, and on the 3rd day of January, in both causes, he, as counsel for the Greubels, made oral motions to withhold the entry of the records of the finding and judgment in each case, which were later followed on January 25th, by motions to vacate the actions of the trial judge in each case. Two days later motions for new trial were filed in each cause. *361 “A court is defined to consist of persons officially assembled at a time and place appointed by law for the administration of Justice. In re Allison, 16 Am. St. Rep. 224, 13 Colo. 525; Dunn v. State, 35 Am. Dec. 54, 2 Ark. 229; Levey v. Bigelow, 6 Ind. App. 677, 34 N. E. 128. . . the proper persons, namely, the clerk, sheriff and judge of the White Circuit Court had assembled at the time appointed by law for holding said court.” So reasoned this court in Board of Commissioners of White County v. Gwin, Sheriff (1894), 136 Ind. 562, 569, 570, 36 N. E. 237, in holding that a duly constituted circuit court was in existence. The court could not exist without a judge, but the judge is not the court. “Judge Elliott said in Shoultz v. McPheeters (1881), 79 Ind. 373, 376, ‘Throughout all the constitutional provisions runs the controlling idea that a court cannot exist without a judge.’ But a judge is not the court, although frequently the words are used interchangeably.” State ex rel. Kiser, Cohn & Shumaker, Inc. v. Sammons (1944), 223 Ind. 27, 34, 57 N. E. 2d 587. “The judge of a court, while presiding over the court, is, by common courtesy, called ‘the court,’ and the words ‘the court,’ and ‘the judge,’ or ‘judges,’ are frequently used in our statutes as synonymous. Michigan Cent. R. R. Co. v. Northern Ind. R. R. Co., 3 Ind. 239 (245).” Levey v. Bigelow (1893), 6 Ind. App. 677, 682, 34 N. E. 128. It follows from these well recognized principles that the regular presiding judge of a circuit court is not the circuit court, and that his acts to become that of the court must have been done within his jurisdiction. When a special judge assumes jurisdiction in a particular cause, his acts within his jurisdiction become those of the court, and the presiding judge has no jurisdiction to interfere with his juris *362 diction. Each could perform valid judicial acts on the same day at the same time and they would then be the acts of the same circuit court, but that does not mean that the regular judge could interfere with the records under the control of the special judge any more than the special judge could interfere with the records properly made and under the control of the regular judge. The rule that the court has jurisdiction to vacate, amend and modify its records during the term when made does not mean that in all cases the regular judge possesses this jurisdiction, for he is not the court, and his jurisdiction depends upon his jurisdiction to act in the particular case. In State ex rel. Hodshire v. Bingham, Judge (May 5, 1941), 218 Ind. 490, 33 N. E. 2d 771, 134 A. L. R. 1126, this court noted that it had on the day of filing of the opinion, adopted Rule 1-9 effective as of September 1, 1941. That case also held that a judge pro tempore whose authority to act generally had expired when the regular judge resumed the bench, was the judge to rule on a motion for new trial thereafter filed, and that the action of the regular judge in striking out and expunging the record made by the judge pro tempore was void. The court therein approved the reasoning of this court in Staser v. Hogan (1889), 120 Ind. 207, 223, 21 N. E. 911, 916, 22 N. E. 990, which held that a judge pro tempore after the term- of trial was the proper judge to rule on the motion for a new trial and enter judgment on the verdict. Since under § 4-316, Burns’ 1946 Replacement, the judge pro tempore is to “conduct the business of such court, subject to the same rules and regulations that govern circuit courts in other cases, and shall have the same authority during the continuance of his appointment, as the judge elect, or making such appointment,” the irresistible con *363 elusion from these eases is that the trial judge was the proper judge to rule on the motion for new trial, enter judgment on the verdict, and that the acts of a succeeding regular judge in interfering with the record were void. “A party to an action is entitled to a determination of the issues by the jury or judge that heard the evidence, and where a case is tried by the j udge, and the issues remain undetermined at the death resignation or expiration of the term of such judge, his successor cannot decide, nor make findings in, the case, without a trial de novo. Bahnsen v. Gilbert (1893), 55 Minn. 334, 56 N. W. 1117; Clanton v. Ryan (1890), 14 Colo. 419, 24 Pac. 258; In re Sullivan (1904), 143 Cal. 462, 77 Pac. 153; Conolly v. Ashworth (1893), 98 Cal. 205, 33 Pac. 60; Mace v. O’Reilly (1886), 70 Cal. 231, 11 Pac. 721; Norvell v. Deval (1872), 50 Mo. 272, 11 Am. Rep. 413; Weyman v. National Broadway Bank (1880), 59 How. Prac. 331; Putnam v. Crombie (1861), 34 Barb. 232; Cain v. Libby (1884), 32 Minn. 491, 21 N. W. 739; Ells v. Rector (1875), 32 Mich. 379, 23 Cyc. 565.” Wainwright v. P. H. & F. M. Roots Co. (1912), 176 Ind. 682, 698, 699, 97 N. E. 8. To permit a succeeding judge to vacate and annul a finding made by the trial judge would be a judicial act not contemplated either by the authorities of this state or by Rule 1-9, for it would permit him, in effect, to grant a new trial. It is not to be presumed that this court promulgated a rule which is futile, and by implication, acts which would make the rule meaningless are prohibited. To permit a succeeding regular judge to prevent the making of a record of a finding previously announced, or to vacate such a record after it is made, would abolish the jurisdiction of the trial judge to rule on the motion for a new trial and enter judgment either on a finding *364 or a verdict. See Staser v. Hogan, supra. The rule was not intended to establish any such chaotic jurisdictional situations. This construction is supported by Rule 1-8. This case was tried without a jury. Rule 1-8 provides that “On a motion for a new trial in an action tried without a jury, the court may open the judgment, if one has been entered, take additional testimony, amend findings of fact and conclusions of law, or make new findings and conclusions, and direct the entry of a new judgment.” When Rule 1-9 is construed with this rule, it is apparent that the trial judge was to control the record in the case he had tried just the same as if he had been appointed special judge, and that his jurisdiction should be the same as any duly appointed and acting special judge who tried the case. It was unnecessary in the cases below for the trial judge to be appointed a special judge, but his jurisdiction to act continued under the rule, nor would any attempted limitation of jurisdiction by the appointment for less than the rule provides be valid. As long as the trial judge was the regular presiding judge of the Vanderburgh Circuit Court, it was the duty of the Clerk of such court to make the court’s records as that judge directed. .The trial judge did officially sign entries which contained a finding and judgment in each cause. It was not the fault of the trial judge that the clerk was behind in making up the order book, nor should that fact deprive the trial judge of his jurisdiction to control the records in the cases he had tried, announced his findings and signed an entry for judgments. Section 1 of Chapter 100 of the 1933 Acts amended the previous law directing that the order book be read and signed in open court (Acts *365 1885 [Spec. Sess.], ch. 32, §1, p. 124), by providing that: “It shall be the duty of the clerk of the circuit court to draw up each day’s proceedings at full length in the proper order-book of said court, and the judge of said court shall thereupon sign the same, and no process shall issue upon any judgment or decree of court until it shall have been so signed by the judge.” Section 4-324, Burns’ 1946 Replacement. The general rule is that courts speak by their order books. Cook v. State (1941), 219 Ind. 234, 37 N. E. 2d 63; O’Malia v. State (1934), 207 Ind. 308, 192 N. E. 435. The signing of the entries containing the judgments on the findings previously announced December 29th, constituted written orders to the clerk to make up the order book entries in conformity with such judgments. These were official entries the same as if the same writing had been placed on the bench docket minute book. When the judgments appear on the order book, they become notice of their contents. The signing of the entries was done in a dual capacity. The signing as to that part of each entry containing the finding was ministerial, since it merely made a record of what the judge had previously announced in open court. But the same act of signing as to that part of each entry containing the judgment was judicial, since this was the first pronouncement of each judgment, but it was not such a judicial act as could only be done in open court. The judgments of necessity must follow and conform with the findings, and § 4-324, Burns’ 1946 Replacement, does not now require the order book to be read and signed in open court. The judgments were valid from the time the trial judge signed the entries in chambers. The order book entries could even be signed at a subsequent term. *366 Kent v. Fullenlove (1872), 38 Ind. 522; Beitman v. Hopkins (1887), 109 Ind. 177, 9 N. E. 720. The findings should have been entered on the order book as of December 29, 1948, but the judgments should have been entered on the order book as of December 31, 1948, and upon proper motion by the respondents, the record should be made up accordingly. Livingston v. Livingston (1921), 190 Ind. 223, 130 N. E. 122. The temporary writ is made permanent. Starr, C. J. and Young, J. dissent. Note.—Reported in 85 N. E. 2d 254. Footnotes [1] Hule 1-9. Authority of Judges. “The judge who presides at the trial of a cause shall, if available, rule on the motion for a new trial, if one is filed, and shall sign all bills of exceptions, if such are requested. The unavailability of any such trial judge shall be determined and shown by a court order made by the judge then presiding in such court.”