Summary
In Macy v. Logansport Machine Co., (1953), 232 Ind. 270, 111 N.E.2d 717, the term of the trial judge expired during trial.
Summary of this case from Harden v. StateOpinion
No. 29,046.
Filed April 21, 1953. Rehearing denied May 12, 1953.
1. APPEAL — Procedure — Judges — Extension of Jurisdiction of Judge by Agreement of Parties — Party Having Objection Must Make It at Time Discovered. — Where Judge's term expired on December 31, 1948 but by agreement of parties he retained jurisdiction to dispose of all issues; judgment was entered on April 14, 1949, appellant filed motion for new trial on May 12, 1949 and the ruling on motion for new trial was made on March 9, 1950, this court held that a challenge of the judge by appellant on November 9, 1949 for facts learned as early as January, 1949 was not effective, as appellant should have made the objection known at least before the entry of judgment. A party cannot gamble on a favorable decision and then raise an objection in the event he is disappointed. p. 271.
2. APPEAL — Findings — Evidence — Supreme Court Will Not Weigh Conflicting Evidence. — Where testimony in transcript was over 1,000 pages and it was conflicting on all points, the Supreme Court will not weigh the conflicting evidence. p. 272.
From the Howard Circuit Court, Forrest E. Jump, Special Judge.
Action by Logansport Machine Company under the Declaratory Judgment Act to determine the rights of Macy as patentee of a fluid control valve. From an adverse judgment, Macy appealed. (Transferred from the Appellate Court pursuant to § 4-215, Burns' 1946 Replacement.)
Affirmed.
[Superseding the opinion of the Appellate Court Reported in 101 N.E.2d 715.]
Glenn L. Miller, of Logansport, McClure, Shenk Ellis, of Kokomo, George L. Denny and Schley Trask, all of Indianapolis, for appellant.
John E. Fell, of Kokomo, Alan W. Boyd and Jerry P. Belknap, of Indianapolis (Fell, Life LeVan, of Kokomo, and Barnes, Hickman, Pantzer Boyd, of Indianapolis, of counsel), for appellee.
This action was brought by appellee under the Declaratory Judgment Act to determine the rights of appellant as patentee of a fluid control valve. Appellant filed a cross-complaint, basing separate paragraphs on three theories: (1) An express contract to pay the reasonable value of the patent used by appellee; (2) an implied contract to pay the reasonable value; and (3) a quasi contract by reason of unjust enrichment.
The trial started before Forrest E. Jump, regular Judge of the Howard Circuit Court, in November, 1948. However, on December 31, 1948, his term expired, and he was succeeded by Merton 1. Stanley. By agreement of the parties, and with the consent of the new regular Judge, all of which was duly entered, Judge Jump retained jurisdiction to dispose of all issues. Judgment was entered on April 14, 1949, appellant's motion for a new trial was filed May 12, 1949, and ruling on that motion was made on March 9, 1950.
Appellant challenges the right of Judge Jump to rule on the motion for a new trial because of the fact that he had joined the law firm of appellee's attorneys. However, the first such challenge in the trial court was not made until November 9, 1949, although the record discloses that appellant had knowledge of the facts as early as January, 1949. If appellant had objections to Judge Jump continuing to serve, he should have made the objection known at least before the entry of judgment. A party cannot gamble on a favorable decision and then raise such an objection in the event he is disappointed. Carr v. Duhme (1906), 167 Ind. 76, 78 N.E. 322.
Appellant next contends that the finding is not sustained by sufficient evidence and is contrary to law. This contention is pointed solely to the evidence. The testimony in this case 2. fills over 1,000 pages and there are approximately 100 exhibits. No good purpose would be served by attempting to summarize the evidence. It is sufficient to say that it is conflicting on all vital points. This court will not weigh conflicting evidence.
Objection is made to the admission of certain evidence. But no showing of any kind is made that such evidence was harmful to appellant, nor can we find that it was.
Judgment affirmed.
BOBBITT, J., not participating.
NOTE. — Reported in 111 N.E.2d 717.