Ripley v. Mutual Home & Savings Ass'n

Monks, J. All the errors assigned by appellants, except the fifth, are predicated upon the theory that section 9 of [156] the act of 1897 (Acts 1897, p. 287), §3406i Homer 1897, §4463i Burns Supp., was void, so far as it provides that all contracts theretofore made between borrowers and building and loan associations, for the payment of premiums without any bidding, are legalized. This question was decided in International, etc., Assn. v. Wall, 153 Ind. 554, adversely to appellants’ theory and contention. By the fifth error assigned appellants attempt to challenge the appointment of the special judge who tried said cause, on the ground that the person appointed was incompetent. The record shows that appellants filed an affidavit for change of judge in the court below, and that the person appointed to try said cause by the judge of said court was a competent and disinterested attorney of said court. No objection was made by anyone to said appointment, nor was it questioned in any manner in the court below. It is settled in this State that the only questions not waived by a failure to present the same in the court below, and that can be presented for the first time on appeal, are that the complaint does not state facts sufficient to constitute a cause of action, and want of jurisdiction over the subject-matter of the action. Yorn v. Bracken, 153 Ind. 492; Elliott’s App. Proc., §§489, 674. Under this rule, objections to the competency of a special judge to preside must be made at the time, or the right to object thereto will be waived. Lillie v. Trentman, 130 Ind. 16; Cargar v. Fee, 119 Ind. 536; Greenwood v. State, 116 Ind. 485; Schlungger v. State, 113 Ind. 295; Powell v. Powell, 104 Ind. 18; Rogers v. Beauchamp, 102 Ind. 33; Adams v. Gowan, 89 Ind. 358; Huffman v. Cauble, 86 Ind. 591; State v. Murdock, 86 Ind. 124; Feaster v. Woodfill, 23 Ind. 493; Case v. State, 5 Ind. 1. Binding no available error in the record, the judgment is affirmed.