Augustine v. Rigdon

48 Ind. 255

• Court: Indiana Supreme Court
• Decided: November 15, 1874
• Status: Published

Opinion

Biddle, J.

On the 15th day of March, 1875, the appellant, who was the defendant below, moved the court to continue the cause, upon the ground that there was no law authorizing the holding of the Kosciusko Circuit Court on that day. The court overruled the motion. A trial was had, and judgment was rendered against the appellant, from which he appeals to this court.

The only error assigned is the overruling of the appellant’s motion to continue the cause.

An act was passed and approved March 6th, 1873, by the thirty-fourth section of which the counties of Marshall,. Kosciusko, and Fulton were constituted the Thirty-third Judicial Circuit. By the thirty-ninth section of the same act, the counties of Allen and Whitley constituted the thirty-eighth circuit. The time fixed for holding the courts in the thirty-third circuit were, in the county .of Marshall on the first Monday in February, the fourth Monday in April, the first Monday in September, and the third Monday in November, of each year; and in the county of Kosciusko, on the Mondays succeeding the courts in the county of Marshall; declaring that the courts in Marshall county should continue three weeks, and in Kosciusko county four weeks. By this act, the Kosciusko Circuit Court would commence on Monday, the 22d day of February, 1875, and continue four weeks, which would extend the term to Saturday, the 20th day of March, 1875, inclusive.

An act was approved March 9th, 1875, by the second section of which the thirty-fourth section of the act of March 6th, 1873, was made to read as fellows, to wit: “That the counties of Kosciusko and Whitley shall constitute the thirty-third circuit.”

By the act of March 9th, it was declared that the court in Whitley should be held on the first Monday in February, the fourth Monday in April, the first Monday in September, and the third Monday in November, of each year; and in the county of Kosciusko on the Mondays succeeding the courts in the county of Whitley; and fixing the length of the terms in Whitley county at three weeks, and in Kosciusko county at seven weeks.

By this act, the Kosciusko Circuit Court would commence on Monday, the 22d day of February, 1875, and continue seven weeks, which would extend the term to Saturday, the 10th day of April, 1875, inclusive. The act of March 9th, 1875, took effect, by its own terms, from and after its passage. It will be seen that both of these acts cover the 15th day of March, 1875. ’The Kosciusko Circuit Court, therefore, could be legally held on that day, under either of them, if the other was' not in force; but as secs. 34 and 39 of the act of March 6th, 1873, were repealed by the act of March 9th, 1875, it follows that the Kosciusko Circuit Court, on the 15th day of March, 1875, was properly held under the latter act. The court committed no error, therefore, in overruling the motion for a continuance.

The judgment is affirmed.