Lunger v. State ex rel. Hathaway

Indiana Supreme Court

Lunger v. State ex rel. Hathaway

12 Ind. 483

DecidedJune 15, 1859

StatusPublished

This text of 12 Ind. 483 (Lunger v. State ex rel. Hathaway) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lunger v. State ex rel. Hathaway, 12 Ind. 483 (Ind. 1859).

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Opinion

Per Curiam.

This was a petition by Nimrod Hathaway for the removal of Harris Lunger, as guardian of Huldah Hathaway, an infant. The petition was filed May 9,1855, and the clerk of the Common Pleas on that day issued a notice, directed to the sheriff, commanding him to notify the defendant, Lunger, to appear before the judge of said Court on the 16th of May, in the same year, at the Courthouse in Covington, at one o’clock, P. M., to answer the petition, &c. On that day, it being a day in vacation, and not in term of the Court, the parties appeared before the judge; and before entering upon the trial, the defendant moved to dismiss the petition, on the ground that the judge had no authority to hear and determine the cause in vacation; but his motion was overruled; and the judge, having heard the evidence touching the matters alleged in the petition, adjudged that defendant’s letters of guardianship be revoked, &c.

J Ristine, for the appellant.

The general rule certainly is, that a judge has no power to proceed in the trial of a cause unless in term time. There are exceptions to this rule; but they do not apply to the case before us. A judge of the Common Pleas has, no doubt, the power to revoke letters of guardianship, for certain causes pointed out in the statute. 2 R. S. p. 325, § 11. But this he is authorized to do only while sitting as a Court at a regular term. The proceedings in this case having occurred in vacation, and not in term time, must be held inoperative.

The order revoking the letters, &c., is reversed with costs. Cause remanded, &c.

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Per Curiam.

This was a petition by Nimrod Hathaway for the removal of Harris Lunger, as guardian of Huldah Hathaway, an infant. The petition was filed May 9,1855, and the clerk of the Common Pleas on that day issued a notice, directed to the sheriff, commanding him to notify the defendant, Lunger, to appear before the judge of said Court on the 16th of May, in the same year, at the Courthouse in Covington, at one o’clock, P. M., to answer the petition, &c. On that day, it being a day in vacation, and not in term of the Court, the parties appeared before the judge; and before entering upon the trial, the defendant moved to dismiss the petition, on the ground that the judge had no authority to hear and determine the cause in vacation; but his motion was overruled; and the judge, having heard the evidence touching the matters alleged in the petition, adjudged that defendant’s letters of guardianship be revoked, &c.

J Ristine, for the appellant.

The general rule certainly is, that a judge has no power to proceed in the trial of a cause unless in term time. There are exceptions to this rule; but they do not apply to the case before us. A judge of the Common Pleas has, no doubt, the power to revoke letters of guardianship, for certain causes pointed out in the statute. 2 R. S. p. 325, § 11. But this he is authorized to do only while sitting as a Court at a regular term. The proceedings in this case having occurred in vacation, and not in term time, must be held inoperative.

The order revoking the letters, &c., is reversed with costs. Cause remanded, &c.

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Bluebook (online)

12 Ind. 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lunger-v-state-ex-rel-hathaway-ind-1859.