DISSENTING OPINION The author of the prevailing opinion has been unable to convince me, and I have been unable to convince myself, that the duly elected judge of the Vanderburgh Circuit Court should be prohibited from exercising jurisdiction in connection with action taken by his court during term. The power of a court over its judgments during the entire term at which they are rendered, is unlimited. 1 Freeman, Judgments, §§ 140, 194 (5th ed.). This rule has been consistently followed by the decisions of this court. State ex rel. Lawson v. Stodola (1948), 226 Ind. 631,82 N.E.2d 896; Livingston v. Livingston (1921),190 Ind. 223, 229, 130 N.E. 122; Wabash R. Co. v. City of Gary (1921),191 Ind. 394, 397, 132 N.E. 737; Vesey v. Day (1910),175 Ind. 406, 411, 94 N.E. 481.
In Livingston v. Livingston, supra, this court used the following language which, it seems to me, is very significant in the case before us:
"The power to vacate judgments was conceded by the common law to all its courts. This power was *Page 367 exercised in a great variety of circumstances, and subject to various restraints. The practice in the different states is, in many respects, so conflicting that few rules can be laid down as universally applicable. One rule is, however, undoubted. It is that the power of a court over its judgments, during the entire term at which they are rendered, is unlimited. 1 Freeman, Judgments, § 90 (4th ed.).
"The proceedings in a cause remain in fieri until the end of the term at which the motion for a new trial, though filed after judgment, is ruled upon, and in the meantime the court may alter, amend, or set aside its former ruling, orders and judgment, without notice to the parties. (Citing cases.)"
Consent judgments and criminal judgments which have been executed are sometimes recognized as exceptions to the general rule, 1 Freeman, Judgments, § 140 (5th ed.), but these exceptions are not material in the case before us.
This rule is not altered by the fact that a new judge has taken office. Control of records reposes in the court and the court acts by its judge, and the fact that on one day there is one judge and on the next day, during the same term, there is another judge, does not divest the court, speaking by the second judge who is then in office, of the right to control the record made during the same term by the court speaking by the earlier judge. 48 C.J.S., Judges, § 41, p. 1006; Hedrick v. Hedrick (1867),28 Ind. 291, 293; Logan v. Columbia Canning Co. (1905),2 Alaska 557; State ex rel. Rucker v. Superior Court (1897),18 Wash. 227, 51 P. 365; Department of Public Works andBuildings v. Legg et al. (1940), 374 Ill. 306, 29 N.E.2d 515.
In 48 C.J.S., at p. 1006, the following language is used:
"Although judges are not courts, in a strict sense it may be said that judges exercise the power vested *Page 368 in courts as such, and not in them as officers qua officers, that is to say, the jurisdiction is vested in the court, not in the judge, however composed, whether of one judge or several. The authority and powers of a judge are incident to, and grow out of, the jurisdiction of the court itself. . . . The court continues, although the term of the judge is terminated, and, where the judge is succeeded by another, the court retains its identity. It is the same court. . . ."
In Hedrick v. Hedrick, supra, one judge succeeded another and the jurisdiction of the second judge was involved. This court said: "The change of judges would not change the court; for all judicial purposes they remained identical."
In State ex rel. Rucker v. Superior Court, supra, the Supreme Court of Washington used the following language:
"The judge of the Superior Court who directed the judgment of dismissal on the 29th day of December, 1896, retired from office, and his successor occupied the office at the time the motion to vacate the judgment was made. The action of the Superior Court is that of the judge of the court, and a change in the persons who occupied the position does not affect the consideration of the vacation of the judgment. . . ."
In Logan v. Columbia Canning Co., supra, it was held specifically that a successor judge may vacate a judgment order entered by his predecessor during the same term of court.
In the case before us a judgment was entered at the December term of the Vanderburgh Circuit Court on the last day of the term of office of the regular judge of said court. On the following day and during the same term of court, a new judge, who had been elected to succeed the judge who had made the record, took *Page 369 office. He was asked to vacate the judgment entered by his predecessor and in this original action we are asked to prohibit him from entertaining such motion or taking any action in connection with the case involved. As I view the situation, the Vanderburgh Circuit Court had unlimited jurisdiction during the term of court at which the judgment in question was entered to change or vacate that judgment and could speak only by its regularly elected judge. Relators claim that when a motion for new trial was filed then under Rule 1-9 of this court the retiring judge in effect became special judge in the case involved. That is true, but only for the limited purposes stated in the rule. Rule 1-9 simply provides that the judge who presides at the trial of a cause shall, if available, rule on the motion for a new trial, if one is filed, and shall sign all bills of exceptions, if such are requested. The writ of mandate, which is before us, shows that after the petition had been filed with the new regular judge to have the judgment vacated, a motion for a new trial was filed with the Honorable Nat H. Youngblood, who was the judge of the Vanderburgh Circuit Court at the time the judgment in question was rendered. In the motion itself and in the order and entry showing the filing of the motion for a new trial it is specifically stated that the motion for a new trial is filed by the defendants without waiving any of the questions presented in the affidavit and motion theretofore filed with the new judge of the court in which he was asked to hold the judgment a nullity and void, and in this order it was also stated that the Honorable Nat H. Youngblood, having tried the case which resulted in the judgment here involved, was appointed pursuant to Rule 1-9 of the Supreme Court in the capacity of special judge for thepurpose of passing upon said motion for a new trial. *Page 370
Rule 1-9 was construed in 1943 by a learned former attorney general as making the retiring judge of the court a special judge only for the purposes specified in the rule. See Opinions of Attorney General of Indiana, 1943, p. 152. In Ploughe v.Indianapolis Railways, Inc. (1943), 222 Ind. 125, 128,51 N.E.2d 626, this court held that the rule in nowise had the effect of extending the official term of the retiring judge, but that its effect was that, were he called upon to approve a bill of exceptions or, by the same token, to rule upon a motion for a new trial he would be "acting merely in the capacity of a special judge," and the opinion of the attorney general just referred to, holding that he acted in the capacity of special judge only forthe purposes specified in the rule, was definitely adopted and approved.
We have therefore, it seems to me, a situation where a newly elected judge took office during the term at which a questionable judgment had been entered. A petition to have it vacated and annulled was filed with the newly elected judge before a motion for a new trial had been filed. At that time, therefore, under the law to which we have referred, the new judge, respondent herein, had power and jurisdiction to alter or vacate the judgment in question either upon his own motion or upon petition. The old regular judge, who had tried the case would, under Rule 1-9, acting in the capacity of special judge, have the power and authority to entertain a motion for a new trial and to pass upon bills of exceptions. He had no power or jurisdiction beyond that. All other power and jurisdiction over the judgment involved reposed in the regular judge of the court, and included in that power of the newly elected judge was the power and authority to alter or vacate, if he saw fit, the judgment involved during the term at which it was entered, and this would be particularly true *Page 371 where, as here, the power to vacate had been invoked before a motion for a new trial had been filed and the old judge appeared in the capacity of special judge.
The petition filed with the newly elected regular judge of the Vanderburgh Circuit Court, asking him to vacate and nullify the judgment here involved, was based upon a claim by the defendants in the case that on December 31, when the judgment here involved was rendered by the then regular judge of the Vanderburgh Circuit Court, there was acting a judge pro tempore and that during the period for which such judge pro tempore was appointed all the power of the court reposed in the judge pro tempore and the regular judge was without power to render the judgment here involved. This theory is supported by authority. When a judgepro tempore is appointed there is vested in him the functions and power of the regular judge during the entire judicial day for which the appointment of the judge pro tempore was made. Stateex rel. Hodshire v. Bingham, Judge (1941), 218 Ind. 490, 491,33 N.E.2d 771; State ex rel. Freeman v. Sup. Ct. MarionCounty (1940), 216 Ind. 372, 377, 24 N.E.2d 928.
In the prevailing opinion the position is taken that the respondent should have shown by verified copies of the record, as a matter of defense, that a judge pro tempore was appointed and had qualified and was acting when the judgment was rendered on December 31 by the then regular judge of the court. With that position, I disagree, but will not elaborate my thought on the matter because I cannot see that the question of whether or not there was a judge pro tempore appointed and acting on the day the judgment here involved was rendered is controlling in the matter before us. If there had been a judge pro tempore duly appointed, qualified and acting at the time the regular judge entered the *Page 372 judgment involved herein the judgment would of course be void. But even if there had been no judge pro tempore and the judgment involved was valid, the newly elected regular judge of the court had power and jurisdiction to vacate such judgment during the term at which it was rendered, and, having such power and jurisdiction, we should not prohibit him from exercising same simply because he was asked to exercise his power upon a mistaken theory of fact.
In State ex rel. Lawson v. Stodola, supra, a motion for a new trial was filed in a case where a default had been taken and a new trial was granted. It was contended that in a default case a motion for a new trial was not proper, and this court was asked in an original action to prohibit the trial court from proceeding with a new trial. This court agreed that a motion for a new trial in a default case was improper, but denied a writ of prohibition and used the following language:
"It must be remembered, however, that this order was made at the same term at which the default judgment was rendered. Due to this fact the respondent had the right and power to vacate this judgment on his own motion. The power of the court over its own civil judgments during the entire term at which they are rendered, is unlimited. Livingston v. Livingston (1920), 190 Ind. 223, 130 N.E. 122; Wabash R. Co. v. City of Gary (1921), 191 Ind. 394, 132 N.E. 737. It follows, therefore, notwithstanding the motion for a new trial was of no effect, what the court did it had jurisdiction to do and cannot be disturbed by this court."
As in the Stodola case the court, regardless of the fact that the only matter before it was a motion for a new trial, which was improper, had a right to vacate the judgment involved, so in this case, even though the petition asking the newly elected regular judge of the *Page 373 Vanderburgh Circuit Court to nullify the judgment was based upon a mistaken allegation that there was a judge pro tempore acting at the time the judgment was rendered, we should not prohibit the Vanderburgh Circuit Court from taking any steps it thinks proper in the exercise of its general unlimited power over its judgments during the term at which they are rendered. The special power of the retiring judge in connection with a motion for a new trial should not and does not, in my opinion, nullify the general power of the court, acting through its regular judge, to control its orders and judgments entered during the term at which such control is exercised.
I think the temporary writ should be vacated and a permanent writ should be denied.
Starr, C.J., concurs in this opinion.
NOTE. — Reported in 85 N.E.2d 254.