
    Benjamin and Others v. The Evansville, Indianapolis, &c., Railroad Company.
    Judge Pro Test. — A judge called to preside, under the act of 185-5, at the trial of a cause, in the place of another judge who is disqualified, derives his power from the statute, and not from the notice given to him by the disqualified judge. The object of the notice is simply to secure the attendance of a competent judge, and the notice is not part of the record.
    APPEAL from the Knox Circuit Court.
   Elliott, J.

— This was a suit instituted in 1863, by The Evansville, Indianapolis and Cleveland Straight Line Railroad Co. against Benjamin, Blythe and Be Wolf. The complaint alleges, in substance, that in 1859, and prior thereto, the plaintiff was the payee and owner of a large number of promissory notes, which are described, and on which interest had accrued to the amount of $2,000; that said notes fell into the hands of Henry B. Allis, the vice president of said railroad company, who, without any authority of law or of the plaintiff', and without any consideratioh whatever, indorsed them in blank; that said notes had fallen into the hands of the defendant Benjamin, who claimed to be the owner thereof, and had placed them in the hands of said Blythe and Be Wolf for collection, who were threatening to collect the money due thereon for the benefit of said Benjamin; that the indorsement of said notes was fraudulent and void as to the plaintiff, who was still the legal owner-thereof and entitled to their possession. Prayer that tho defendants be required to deliver the notes to the plaintiff'; that the indorsements thereon be cancelled, and the defendants perpetually enjoined from collecting the same for the use or benefit of said Benjamin, and for general relief.

At the February term of the. court, 1864, Blythe filed an answer denying the allegations of the complaint. At the succeeding August term, the death of Blythe was suggested of record, and leave was given the plaintiff' to amend the complaint, and the cause was continued. The plaintiff* filed a supplemental complaint by way of amendment, alleging the death of Blythe, testate, the publication of his will, and the grant of letters testamentary to Thomas JE. Garvin, the executor named in the will, praying that Garvin, as such executor, be made a party defendant, and averring that a large portion of the notes referred to in the complaint had gone into the hands of Garvin, as such executor, and also the sum of $2,000, the proceeds of others of said notes collected by said Blythe in his lifetime. It further avers that the sum of $1,500 had also been collected on said notes by the defendant Be Wolf, which sum was still in his hands.

At the August term, 1865, the judge of said court, having previously been engaged as counsel in the case, declined to preside at the trial thereof. The cause was thereupon set for trial at a special term of the court “ to be held at the court house in Vincennes on the third Monday of November (then) next, before some disinterested judge who would be called to preside at the trial of causes at said special term.” The special term was held at the time appointed by Bavid T. Laird, judge of the Court of Common Pleas for the third district.

The defendants appeared at said term, and Be Wolf and Benjamin demurred to the complaint. The demurrer was overruled,.and the defendants then filed an answer in throe' paragraphs, upon which issues were formed.

By agreement of the parties, the cause was submitted to.< the court for trial without a jury. The court found as follows, viz: “ that the notes, in the complaint herein mentioned, were, at the time of their execution respectively, and still are, the property of the plaintiff; that the property in said notes, as aforesaid, did not pass out of the plaintiff by the indorsement, or pretended indorsement on the same, and delivery thereof referred to in the complaint. The court also finds that the defendant William P. Benjamin is not now, nor has he been, the bona fide holder or-owner of said notes. The court also finds that the plaintiff is entitled to a return of said notes, or to the proceeds thereof in cases in which any of them have been collected. The court also finds that, since the commencement of this suit, and since the temporary restraining order herein was granted, an agreement was entered into between the parties, by which the said James E. Blythe and William H. DeWolf, as the attorneys of their co-defendant Benjamin, were to proceed with the collection of said notes, or such portion of them as might be convenient, and hold the proceeds of the same, subject to the order of this court in this cause. The coui’t also finds that there was in the hands of the said James E. Blythe, attorney as aforesaid, at the time of his death,- as the proceeds of a portion of said notes collected under said agreement, the net sum of §1,355, after deducting all offsets and counter-charges due to the said Blythe, and that sum of money is now in the hands of the said Thomas E. Garvin, executor of the last will and testament of the said James E'. Blythe, who is now deceased, subject to the order of this court herein. The court also finds that there is a sum of money in the hands of the defendant De Wolf, attorney as aforesaid, as the proceeds also of a portion of said notes, also collected under said agreement, but the court is unable, from the testimony, to ascertain the true amount of the same.”

The defendants moved the court for a new trial, for the reasons that—

1. The finding by the court, of the facts in the case, is contrary to the evidence.

2. The finding by the court of the facts is contrary to law as well as the evidence.

The court overruled the motion, and rendered judgment for the plaintiff" on the finding. The defendants appeal.

The first objection to the proceedings, urged by the appellants, relates to the legality of the court by which the =case was tried. It is claimed that, though the record shows ithat the case was not tried by the judge of the circuit, it does not show a trial before any other judge legally authorized. The record, however, does not sustain the position. Wo have seen that the circuit judge, having been of counsel, declined to try the case, and set it for trial at a special term of the court to commence on the 3d Monday of November, 1865. The record in the case is badly made up. In setting out, in the complete record, the first proceedings had in the cause at each term, the clerk should state before whom the court is held. This is not done in that part of the record in which the proceedings of the special term, at which the cause was tried, are set out, but the record commences with the following statement: “At a special term of the Knox Circuit Court, held at the court house in Vincennes, Knox county, Indiana, pursuant to an order of court, and notice given as required by the said order, commencing on the 20th day of November, 1865, being the third Monday in November, 1865, before the lion. David T. Laird, judge of the Court of Common Pleas of district number three, in tho State of Indiana, the following proceedings were had, to-wit.” This statement can only relate to the proceedings of the special term, as all the others occurred prior to its date. This is not a case in which tho judge presiding should have a special appointment.

Tho regular judge of the court being incompetent to try the cause, it was his duty to fix the time for trial, and notify some other judge thereof, who is required by the statute to attend at the time and place appointed, and to hold the court. The statute makes any other judge of a court of record competent to preside. He derives his power from the statute, and not from the notice given him by the disqualified judge. The object of the notice is simply to secure the attendance of a competent judge, and the notice is not a part of the record. 2 G. & H., §§ 1, 2 and 3, p. 9.

It is also claimed that the notes in controversy were payable at a chartered bank in this State, and were therefore, governed by the law merchant, and being indorsed’ were protected in the hands of Benjamin, a bona fide holder, and that the finding of the court was therefore contrary both to the law and the evidence. But the court found that Benjamin was not a bona fide holder of the notes, and we cannot say that the evidence, which is in the record, does not sustain that finding. The notes were indorsed by Allis who was the vice-president of the company. The indorsements were signed thus: “ H. D. Allis, V. P., att’y in fact for J. Smith, President.” And it is very clear, from the evidence, that neither the president or vice-president had any authority as such, or otherwise from the company, to make the indorsements. The evidence shows that tho notes in controversy were executed by various persons residing at different points along the line of the railroad, or in different counties through which the road was located; that B. S. Alford was one of the contractors for the construction of the road, and because his business led him to pass along’ the line thereof, the notes in controversy, with many others, were placed in his hands for collection, and for no other purpose. The vice-president of the company, however, before delivering the notes to Alford, indorsed them in the manner stated. Benjamin was the brother-in-law of B. S. Alford and N. B. Alford, both of whom were contractors on the railroad. Benjamin and the Alfords all resided in the State of Connecticut.

Benjamin claims that the Alfords were indebted to him over $13,000 for money loaned them, evidenced by three promissory notes, all dated January 1, 1857. In 1858, he commenced suit on the notes in the city of New York, and recovered judgment thereon against both the Alfords. Sometime subsequent to the recovery of tho judgment, Benjamin testifies that the notes in controversy were sent to him by his attorneys in New York, as a payment on said judgment, but how the notes were procured, or from whom, he did not know; that he had not credited the judgment therewith, nor authorized his attorney to do so. One of the notes in controversy, and the indorsement thereon, is set out in the record as a specimen of the whole. It is payable at tbe Crescent City Bank, but tbo indorsement bears date after-tbe maturity of tbe note. Tbe evidence shows tbat tbe greater number, tbougb not all, of tbe notes were payable in bank, but as they were placed in Alford’s possession for collection only, it may be reasonably inferred tbat tbey bad all matured before they were indorsed.

J. G. Jones, J. Davis, S. E. Perkins and L. Jordan, for appellants.

W. E. Niblack and W. H. De Wolf, for appellee.

Ve think tbe finding of tbe court is sustained by tbe evidence. Tbe demurrer to tbe complaint was correctly overrated. Tbe supplemental complaint made Garvin, the executor of Blythe, a defendant, bio order of tbe court for tbat purpose was necessary, and as we understand tbe record it shows tbat be appeared and joined in tbe answer.

Tbe judgment is affirmed, with costs.  