CITY OF COLUMBUS v. RYNERSON.

(No. 24890.)

(Supreme Court of Indiana. Feb. 20, 1925.)

1. Judges 22 (8)-Statute establishing pay of special judges held applicable to special judges in city courts.

Burns' Ann. St. 1914, § 432, allowing special judges sum of $5 per day for time actually served, applies to special judges in city courts, in view of Acts 1905, p. 375, providing that special judges in certain instances in city courts shall receive compensation allowed special judges. in circuit courts.

2. Judges 22 (8)-Statute establishing pay of special Judges held applicable to special judges in city courts when acting in criminal cases where change of venue has been taken. Under Burns' Ann. St. 1914, § 2075, concerning public offenses and not providing compensation for judges, and section 2231 providing that in all criminal cases rules of pleading and practice in civil actions shall govern so far as applicable, special judges in city courts, when acting in criminal cases where a change of venue has been taken, are entitled to pay established by section 432 in civil cases.

3. Statutes 188-Words and phrases to be taken in ordinary and usual sense. In construction of all state statutes, words and phrases shall be taken in their plain or ordinary and usual sense.

city, in excess of the amount alleged by appellant to be due appellee.

The complaint alleges:

"That the plaintiff is now, and was during the year 1917, a municipal corporation of the state 1917, the defendant, John Rynerson, after beThat on the 8th day of March,

of Indiana.

ing duly appointed, acted as spécial judge in the city court of said city of Columbus in two cases. That thereafter, on the 16th day of March, 1917, said defendant filed his claim with the clerk of said city for his services rendered on said day, said claim being numbered 21551, in which claim he demanded and claimed the sum of ten dollars. That said claim was approved by H. K. Volland, mayor of said city. That after said claim was filed as aforesaid, the city clerk of said city wrote and delivered a warrant payable to said defendant for ten dollars, in payment for said services; said warrant being numbered 8824. And that on a presenta

tion of said warrant to the treasurer of said

city by the defendant, said sum was received by him from the treasury of such city.

"That the defendant for said services rendered by him on said day was only entitled to the sum of five dollars, and said excess amount of five dollars was paid to him by mistake. And that on the 9th day of July, 1917, the defendant, John Rynerson, after being duly appointed, acted as special judge in the city court

of said city of Columbus in three cases; and on the 14th day of July, 1917, said defendant, after being duly appointed, acted as special judge in the city court of said city of Columbus in five cases; and on the 11th day of July, and on the 12th day of July, said defendant, after being duly appointed, acted as special

thereafter, on the 21st day of July, 1917, said bus, in one case on each of said days. That defendant filed his claim with the clerk of said city for his services rendered on said days, said claim being numbered 22371, in which claim he demanded and claimed the sum of fifty dollars. That said claim was approved by H. K. Volland, mayor of said city. That after said claim was filed as aforesaid, the city clerk of said city wrote and delivered a warrant payable to said defendant for fifty dollars, in payment for said services; said warrant being numbered 9844; and that on a presentation of said warrant to the treasurer of said city by the defendant, said sum was received by him from the treasury of such city. That the charges made on said claim for services rendered on July 9, 1917, amounted to fifteen dollars, which sum was paid to the defendant for said services rendered on said day. That for said services so performed by him on said day, he was only entitled to the sum of five dollars. That the charges made on said claim for services rendered on July 14, 1917, amounted to twenty-five dollars, which sum was paid to the defendant for said services rendered on said day. That for said services so performed by him on said day, he was only entitled to the

sum of five dollars. That for said services set out in said claim, said defendant was paid an excess amount of thirty dollars, which was paid to him by mistake.

"That the total excess amount so paid to said

defendant as herein set out, to which he was not entitled, was thirty-five dollars. That prior to the beginning of this action a demand was made of the defendant for a repayment and return of said sum of thirty-five dollars; and that the defendant refused to repay or return same, but still keeps and retains said sum. That said sum of thirty-five dollars is unpaid and is due the plaintiff, with interest from the dates of said excessive payments on each.

"That heretofore, by the authority of the state examiner of the department of inspection and supervision of public offices, through Horace W. C. Fosdick and Thad L. Major, field examiners of said department, an examination was made of the accounts of the city clerk of the city of Columbus, for the period from January 1, 1916, to December 31, 1917; and that reports of said examination so made were made, signed, and verified in quadruplicate by said field examiners, which reports were immediately filed with the said state examiner, and after inspection by him, a copy of said reports was filed with the defendant, John Rynerson, one copy with the city of Columbus, and one copy was placed by him with the Governor of the state of Indiana; which last copy was transmitted by the Governor to the Attorney General. And the Attorney General hereby institutes and prosecutes this civil proceeding against the defendant, in order to carry into effect the finding resulting from such examination and to secure to the plaintiff the amount due it from the defendant as shown by said examination.

"Wherefore plaintiff demands judgment against the defendant for fifty dollars and all other proper relief."

Defendant filed his demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, alleging, by his memoranda in support thereof, wherein the complaint was insufficient for want of facts, consisting of the following five particulars, to wit:

"Memoranda. (1) A special judge is entitled to $5 per day for each day's or part of a day's service in each case in which he has been appointed special judge. (2) Special judges are not appointed to serve for a day or any specific period of time, but are appointed in a particular case and are entitled to pay for services rendered in the particular case. (3) The law does not recognize part days in the services of special judges, but if they serve part of a day in a case they are entitled to pay for a day's service, and if called upon on the same day to render services as special judge for part of a day in other cases he would be entitled to his pay in such other case for a day's service and so on in any number of cases as he might serve as special judge in on any particular day. (4) The statute does not fix the amount of fees that a special judge shall receive in a city court and the allowance in this case, having been fixed by the city judge or mayor, and allowed by him, such allowance cannot be attacked. The judge or mayor is the sole judge of the reasonableness of the fee allowed a special judge in that court. (5) The number of days served by the special judge having been ascertained and fixed by the city judge or mayor, is conclusive and cannot be attacked."

The court sustained appellee's demurrer to the complaint, to which ruling of the court appellant excepted, and, refusing to amend its complaint or plead further, the court rendered judgment for appellee, from which appellant appeals. Appellant assigns as error the action of the court sustaining the demurrer to the complaint, which presents the only question for consideration.

The complaint is silent as to whether appellee was appointed to act as special judge because of the temporary absence or inability of the regular judge to act, or to act in

cases where changes of venue from the regular judge had been requested and granted. Appellant and appellee agree that the sole question involved in this appeal is the compensation to which a special city judge is entitled when acting in cases where changes of venue from the regular judge have been requested and granted. Appellant contends that the compensation allowed by the statute is $5 per day, regardless of the number of cases in which the special judge acts in any one day. Appellee contends there is no statute which provides for compensation of a special judge in a city court in cases where changes of venue have been taken from the regular judge of such city court, on account of which situation the special judge would be entitled to such compensation as is allowed by the regular city judge or mayor; and the further proposition that in cases where the special judge is appointed because of changes of venue, he is entitled to compensation in each case separately, notwithstanding he acted in the several cases on the same day.

[1] Appellee admits that when a special judge is appointed in a city court because of the temporary absence or inability of the regular judge to act, the compensation for such special judge shall be the same as allowed "special judges in the circuit court." Sections 8843, 432, Burns' 1914.

The act passed in 1881, entitled "An act concerning proceedings in civil cases" (Acts 1881, p. 240), of which section 432, supra, is section 258 of the act, does not refer to, neither is the act restricted to, either circuit or superior courts. That act is general and section 258 of the act applies with as much force to special judges of the city courts as it does to special judges of any other courts, except where other statutory provision is made. The act creating the city court (Acts 1905, p. 375) provides that a special judge in city courts shall receive compensation allowed special judges in circuit courts, where acting under an appointment made because of the temporary absence or inability of the regular judge to serve, but is silent concerning compensation for a special judge when acting as such under an appointment because of a change of venue. The act entitled "An act concerning proceedings in civil

cases" (Acts 1881, p. 240), is general. It is neither addressed nor limited to circuit courts, or to circuit and superior courts, but to all courts which exercise jurisdiction in civil cases. City courts are clothed with jurisdiction in civil cases, and hence come within the scope of the act and are governed by it. The conclusion inevitably follows that section 432, supra, applies to special judges in city courts.

[2] The complaint is silent as to whether the cases involved in this proceeding were civil or criminal, or both. If some, or all of the cases in which appellee acted as special judge, were criminal, does the, Act of 1881, supra, which concerns proceedings in civil cases, apply? In the recodification of the Criminal Code by the Sixty-Fourth General Assembly, section 204 (section 2075, Burns' 1914), of the act entitled, "An act concerning public offenses" (Acts 1905, p. 584), provision was made for a special judge where a change of venue is taken from the regular judge. Acts 1905, p. 584. This section of the act is not limited to any special court, but is general, and includes special judges in cases where the change of venue is taken from the regular judge of a city court, except where it is provided otherwise. This statute, section 204, supra, does not provide compensation, but leaves it to other specific or general laws, if there are any such. By section 344 of this same act (section 2231, Burns' 1914), it is provided that, "In all criminal cases, where no special provision has been made in this act, the rules of pleading and practice in civil actions shall govern, so far as applicable." Under the authority of this section of the statute, special judges in city courts, when acting in criminal cases, where a change of venue has been taken, are governed by the statute in civil cases, which is section 432, supra. Boos v. State (1914), 181 Ind. 562, 105 N. E. 117.

It remains to consider and decide whether section 432, supra, gives authority to allow compensation of $5 per day in each case, of two or more cases, when the special judge acts on two or more cases the same day, and when the appointment to such special judge is for each case separately, because of changes of venue from the regular judge. This question of the construction of this section of the statute is one of first impression.

Appellant contends that section 432, supra, applies to the case at bar and that it limits the allowance to $5 per day, and no more, notwithstanding more than one case was acted upon the same day, and that they were cases in which the appointment was

"When a judge is called upon to preside in the place of the regular judge, either at a regular or an adjourned term, whether selected from the bench or bar, he shall be allowed the sum of five dollars per day for the time actually served, and in going to and returning, Provided, that in all cases where a special judge shall be called, the compensation paid, as herein provided, shall be deducted * * from the pay of such regular judge, except when such special judge is called to preside in cases on change of venue.

* *

"

[3] In the construction of all statutes of this state, words and phrases shall be taken in their plain or ordinary and usual sense. The words or phrases of the statute (section 432, supra), necessary to its construction are not technical. The signification of the statute is that the compensation to be allowed special judges for services is limited, the limit being "the sum of $5 per day for the time actually served, and in going to and returning."

[4] The question arises, does section 432, supra, apply to special judges when appointed because of a change of venue, as well as when called upon to preside in the place of the regular judge, either at a regular or an adjourned term? The section of the act itself includes special judges in cases where a change of venue has been taken, by providing that in certain circumstances the compensation of the special judge shall not be deducted from the pay of the regular judge, as shall be done in all cases where the proviso of this section of the act does not apply.

It is therefore held that section 258 of the act concerning proceedings in civil cases, passed in 1881 (section 432, Burns' 1914), provides the allowance permitted to a special judge of a city court organized pursuant to the act concerning municipal corporations (Acts 1905, p. 377, § 217; section 8843, Burns' 1914), whether it be where such special judge is named for a particular case on account of a change of venue from the regular judge, or is appointed because of the temporary absence or inability of the regular judge to act, and that the allowance for such service shall be $5 per day for the time actually served. The demurrer to the complaint ought to have been overruled.

Judgment reversed, and the case remanded to the trial court which is instructed to overrule the demurrer to the complaint and for further proceedings.

GEMMILL, J., not participating

terminable remainder in heirs, as purchasers, contingent on one of two happenings.

[3] Appellants also complain of an instruction to the effect that four forms of verdict were submitted to the jury for their action, and that whichever they might adopt should be signed by their foreman and returned into open court, insisting that any one of six verdicts was possible under the issues. But, again, appellants did not request that additional forms of verdict be submitted, and appellants have not pointed out nor suggested that any evidence was introduced at the trial that tended to prove a state of facts which could not be fully found by a verdict in the form of one of those prepared by the court. No available error was committed in giving the instructions excepted to. The judgment is affirmed.

(No. 24893.)

BURRELL v. JEAN et al. (Supreme Court of Indiana. Feb. 27, 1925.) 1. Wills 629-Postponing estates disfavored.

Postponing estates is disfavored unless clear intent so to do appears, presumption being that postponing words relate to beginning of enjoyment, not time of vesting.

2. Wills 629-Remainders will be regarded as vested, rather than contingent or conditional, so as to avoid possibility of partial intestacy.

Remainders will be regarded as vested, rather than contingent or conditional, in absence of clear intention to contrary, so as to avoid construction which might result in partial intestacy.

3. Wills 449-Testator, held to have disposed of all his property, such being his intention.

Under Burns' Ann. St. 1914, § 3123, it appearing from will that testator intended to dispose of all his interest in real property, will was construed so to do.

4. Wills 634 (19)-Word "after" in devise to one for life, and after her death, to others, held to pertain to time of enjoyment, not time of vesting.

Where devise was to daughter for life and "after the death of my said daughter" to her children in fee, word "after" held to pertain to beginning of enjoyment of estate by remainderman, not time of vesting of interest. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, After.]

Devise to daughter for life, and after her death to her children in fee and, if she die leaving no child or descendant surviving her, to vest in those, as purchasers, answering deto be "equally divided among my heirs," held scription of "my heirs" at testator's death, a determinable remainder, contingent on death of daughter before testator's with no issue who survived him, or death of daughter after testator's without child or children born alive after his death.

6. Wills 634 (17)-Devise to daughter for life, and after her death to her children, held to vest remainder in child living at testator's death.

Devise to daughter for life and after her death to her children in fee, and if she dies leaving no child, or descendant thereof, surviving her, over, held to vest remainder in fee in child of daughter living at testator's death, subject to having his share diminished by birth of other children.

7. Descent and distribution

17-Vested re

mainder in fee in child of life tenant, held to descend to tenant on death of child.

Where testator's daughter was given life estate, and after her death fee to children surviving her, remainder having vested in child alive at testator's death, interest in remainder being alienable and descendable, held to descend to life tenant on death of her child, subject to interest of children born to her there

after.

8. Evidence 58-Contingency, of birth of child to woman, determined only on her death.

Contingency of birth of child or children alive to adult woman is determined only on her death.

9. Descent and distribution 17-On death of children, named as remaindermen, of life tenant, latter to inherit parent's share.

On death intestate of children of life tenant named remaindermen as a class, if unmarried and without issue, tenant would inherit parent's share.

10. Wills 635-Uniting of estates in possession and remainder, held to vest fee, subject to contingency.

Remainder, devised to children of life tenant, having vested in an only child, and at his death descended to life tenant as only parent, union held to vest fee in such tenant, subject to interest of children born thereafter.

11. Judgment 949 (6)-Plea of res judicata held sufficient.

In action to quiet title, pleas of res judicata, embodying judgment of former action brought by plaintiff against defendants and others, and averring facts showing issues in each case were same, held not demurrable on grounds that pleadings in former action were not incorporated in pleas.