17 IND 67 - Cooper v. Lingo

Per Curiam.

¶1The judgment in this case must be reversed, on the authority of Negley v. Wilson, 14 Ind. 215; Seymour v. The State, 15 Ind. 288; and Redwine v. TheState, *68id. 293. This cause was tried by a stranger, not by the legal and judicially recognized judge. In such case, the record must show the right of such stranger to act. Negley v. Wilson, supra. ms case, the authority under which the stranger acted, is set out in the record, and appears on its face to be void, as it was given under circumstances, according to the face of the record, where the law did not authorize it to be conferred.(l) Seymour v. TheState, and Redwine v. TheState, supra. See, also, The Board of Com's v. Coats, at this term; and Miller v. Burger, 2 Ind. 337. The judgment is reversed, with costs. Cause remanded for another trial, with leave to amend, &c.

Thos. A. Hendricks and James W. RoMnson, for the appellant.N. R. Linsday and T. J. Harrison, for the appellee.

(1) The record of the appointment of the pro tempore judge, in this case, was as follows: “And afterwards to wit: on Saturday, the ninth day of February, A. D. 1861, the same being the sixth judicial day of the February term aforesaid, the following proceedings were had herein, to wit: Now comes John M. Wilson, Esquire, and files the following appointment, to wit: State of Indiana, Howard, County, ss : I, John Oreen, Judge of the Court of Common Pleas, do hereby appoint John M. Wilson, judge pro tempore, during my absence, being unable to attend.

“ Given under my hand this 9th day of Feb., A. I). 1861.

(Signed) “John Green.

“ Whereupon the said John M. Wilson was duly sworn, &e.” There was nothing in the record showing who had presided during the first six days of the term.