[Acts 1893, p. 341. In force March 4, 1893.]

1438. Salary of circuit and superior judges.-1. That the salaries of the judges of the circuit and superior courts of this state shall be twenty-five hundred dollars annually, payable quarterly out of the state treasury: Provided, That in all judicial circuits of this state containing any city which had a population of more than thirty thousand, as shown by the last preceding United States census, whenever twenty or more resident freeholders of the county in which such city is situated shall, by their petition, filed with the board of commissioners of such county, represent that the annual salary of the judge of said circuit or superior court, as otherwise provided by law, is not an adequate compensation for the services of such judge, and should be increased in a sum to be specified in such petition, then it shall be the duty of the board of commissioners of such county, in open session, without delay, and at either a regular or special term of such board, to consider such petition and hear evidence thereon, and thereupon within the limits of such evidence, but in no event in excess of the sum of fifteen hundred dollars, or in excess of the sum specified in such petition, such board of commissioners may, by entry of record, fix and allow a certain sum as an addition to or increase of the annual salary of the judge of such circuit or superior court.

See Fees and Salaries, section 6419, and section 29 of act of February 15, 1871, Acts 1871, p. 48.

1439. Payments by county-Action of board.-2. Upon such allowance being made by such board of commissioners the sum so allowed shall be payable only out of the treasury of the county in which such petition is required to be filed, and shall be payable quarterly upon warrants drawn by the auditor of such county upon the treasurer thereof, and from and after the date of such allowance by such board the same shall be held as an addition to the annual salary of such judge, as otherwise fixed and provided by law, and shall not be diminished during the term of office of such judge; and any such allowance, and the proceedings of any board of commissioners in relation thereto, if in compliance with the provisions of this act, shall be final and conclusive.

[1873, p. 190. In force March 10, 1873.]

1440. (1376.) Salary of criminal judges.-3. There shall be allowed to each of the judges of the criminal courts, annually, two thousand dollars, to be paid quarterly out of the treasury of the counties in which said courts are established: Provided, That in all counties having cities with a population of forty thousand, the salary of said criminal court judges shall be twenty-five hundred dollars, to be paid quarterly out of said county treasury as aforesaid.

See Fees and Salaries, section 6420.

The legislature has power to provide different compensation for different judges as specified in this section. State, ex rel., v. Reitz, 62 Ind. 159.

1441. (1378.) Salary of law librarian.-12. The salary of the law librarian shall be twelve hundred dollars per year.

See Fees and Salaries, section 6417, where salary of law librarian is increased to fifteen hundred dollars per year.

1442. (1379.) Term prolonged to finish trial.-1. That if at the expiration of the time fixed by law for the continuance of the term of any court the trial of a cause shall be progressing, said court may continue its sitting beyond such time, and require the attendance of the jury and witnesses, and do, transact and enforce all other matters which shall be necessary for the determination of such cause; and in such case, the term of said court shall not be deemed to be ended until the cause shall have been fully disposed of by the court.

See Acts 1885, p. 114. Ell. Supp., section 284. In force April 2, 1885.

By the second section of this act, prior proceedings had in conformity with the act are legalized.

A special judge has the same power under this section as a regular judge. Perkins ". Hayward, 124 Ind. 445.

This section does not authorize a county board convened to hear a contest of an election to postpone the hearing to a time beyond that fixed by law. English v. Dickey, 128 Ind. 174.

Courts held in pursuance of this section are not adjourned terms, but are continuations of existing terms. Wayne Co. v. Hammons, 129 Ind. 368.

If a trial is in progress when a term of court ends by limitation of law, the term will be continued until the trial is concluded. Dorsch v. Rosenthal, 39 Ind. 209; Krutz v. Craig, 53 Ind. 561; Walker v. State, 102 Ind. 502.

[1881 S., p. 240. In force September 19, 1881.]

1443. (1380.) Adjourned terms.-260. When the business pending in any of the courts of this state shall remain undisposed of at the close of any term of court, the judge may adjourn the court to any other time in vacation (of which notice shall be published in some newspaper of general circulation in the county), and at such adjourned time proceed with the business of the court, as a part of the regular term of said court at which the adjournment was ordered; and all parties, witnesses, jurors and officers shall attend as they were required to do at the regular term. Where changes of venue are taken from the presiding judge, or he is otherwise incompetent to sit in causes, all such cases as require some other judge to try the same may be set for trial at such adjourned term, with all other causes. And such adjourned term may be had to try causes on change of venue only; or any special cases, only, may be set for any adjourned term. And such adjourned term may be held for the transaction of business during the pleasure of the court while the business requires it; but the judge shall not be precluded from fixing any case for trial during any regular term, when the venue is changed from the judge.

See section 1385.

This section repeals section 1333, R. S. 1881, but it does not repeal section 1332, R. S. 1881. Washer v. Allensville Co., 81 Ind. 78.

The reason for adjournment need not appear in the record. Casily v. State, 32 Ind, 62; Cass v. Krimbrill, 39 Ind. 357.

If the court fails to specify the manner of giving notice, but the proper notice is given, the term will be legal. Conrad v. Johnson, 20 Ind. 421; Cordell v. State, 22 Ind. 1; Wood v. Franklin, 97 Ind. 117.

It was held that under the act of 1877, a notice published two days before the meeting of the court was sufficient. Board v. State, 61 Ind. 75.

It will be presumed that an adjourned term was legally held when the contrary does not appear. Wood v. Franklin, 97 Ind. 117.

The fact that court is being held by a special judge in another county of the circuit at the time of the holding of the adjourned term does not render the same illegal. Smurr v. State, 105 Ind. 125.

The court at an adjourned term may cause the proceedings of the regular term to be entered. Green v. White, 18 Ind. 317; Knight v. State, 70 Ind. 375.

An adjourned term is regarded as a part of the regular term. Smith v. Smith, 17 Ind. 75.

The continuance of a trial in progress at the end of a term does not constitute an adjourned term of the court. Wayne Co. v. Hammons, 129 Ind. 368.

1444. (1381.) Absence of judge-Special judge.-261. If during any session of court, by reason of death, sickness or other casualty, any judge shall be prevented from presiding, so that the court will lapse; and if at any term of court the judge shall fail to attend, or during the term shall fail to appear for any period of three days,—the sheriff may adjourn the court from day to day. And on failure to so appear dureng the term, the clerk, sheriff and auditor (and in case of the absence of either, either two, with the recorder of the county) may elect any competent and reputable attorney to act as judge; who, if he accept, shall qualify as other judges, and his appointment, with the reason therefor, and his oath shall be spread on the order-book. And such judge, so selected, may preside until the return of the regular judge, or in case of death, until his successor be named. And in any case of vacancy during term, or if the judge be required to be absent during term, such appointment may be made until a successor shall be named by the proper authority.

If the office of judge is vacant, a special judge can not be appointed under this section. Case v. State, 5 Ind. 1.

This section is applicable to criminal courts. Feigel v. State, 85 Ind. 580.

1445. (1382.) When sheriff adjourns from day to day.-262. Should it happen that any adjourned term of court, presided over by a judge appointed for the purpose, be extended so as to include the time set apart for the court in any other county of that circuit, the resident judge may proceed to hold the court in such other county while such adjourned term is being held; and should the resident judge be presiding at an adjourned term, and the trial of any cause should extend the term so as to reach into the time for court in any other county of the circuit, the trial may be concluded, and the sheriff in such other county shall adjourn the court from day to day until the trial of such cause is concluded, and the appearance of the presiding judge of said court, unless he shall not appear by the end of the third

day, in which case a judge may be selected by the clerk, sheriff and auditor, as in the preceding section provided, to preside until the appearance of the resident judge.

This section does not prevent a court from adjourning for more than three days during a term. Redwine v. State, 15 Ind. 293.

[1877, p. 28. In force March 7, 1877.]

1446. (1383.) When special judge selected.-4. It shall be competent for the regular judge of a court, in all cases where he can not preside, to order that a judge be appointed as follows: He shall name three competent and reputable attorneys. The plaintiff shall strike out the name of one, the defendant the name of one, and the person whose name remains shall be appointed judge in such case: Provided, however, That if either party fail or refuse to strike off the name of the attorney selected, such judge may do so for him, and the appointment and oath shall be filed and entered of record. It shall be competent for parties to a cause to agree upon some person to try the same where the presiding judge is incompetent, and, in such case, the agreement may be presented to the court, be filed with the clerk, and such person shall be appointed by the court, and be qualified as herein before provided; but such agreement may not be made in case a judge has otherwise been appointed to hold a term, or any part thereof, who is competent to try the cause.

See section 419.

The statutes providing for the appointment of special judges are constitutional. Feaster v. Woodfill, 23 Ind. 493; Brown v. Buzan, 24 Ind. 194.

The appointment of special judges must be in writing. Evans v. State, 56 Ind. 459; Herbster v. State, 80 Ind. 484.

Such appointment need not be set out in the record on appeal. Feaster v. Woodfill, 23 Ind. 493.

The 4th section of the act of March, 1855, relative to the appointment of special judges, was not repealed by the statutes of 1881 on the same subject. State v. Murdock, 86 Ind. 124; Bowlus v. Brier, 87 Ind 391; Burrell v. State, 129 Ind. 290.

Objections to the appointment of a special judge must be made at the trial or the same will be deemed waived. State v. Murdock, 86 Ind. 124; Schlungger v. State, 113 Ind. 295; Greenwood v. State, 116 Ind. 485; Rogers v. Beauchamp, 102 Ind. 33.

If the competency of a special judge is questioned, he can not appoint another special judge. Cargar v. Fee, 119 Ind. 536.

[Acts of 1855, p. 62. 2 R. S. 1876, p. 11. In force March 1, 1855.] 1447. Appointment of judge pro tem.-4. If, from any cause, any judge of a circuit court shall be unable to attend and preside at any term of said court, or during any day or part of such term, such judge, or in his absence, or when he shall be unable to make such appointment, the clerk, auditor, and sheriff of the proper county, or a majority of them, may appoint, in writing, any other judge of a court of record of this state, or any attorney thereof eligible to the office of such a judge, to preside at such term, or during any day or part of said term. Such written appointment shall be entered on the order book of such court, and such appointee shall, after being sworn, if he

be not a judge of a court of record, conduct the business of such court, subject to the same rules and regulations that govern circuit courts in other cases, and shall have the same authority, during the continuance of his appointment, as the judge elect, or making such appointment. Such appointee shall be allowed four dollars, if not otherwise paid, for every day he shall so serve, and in going to and returning from the place of holding such court, to be paid out of the annual compensation of such circuit judge, upon a certificate of the number of days served, signed and attested by the clerk of such court, being presented to the auditor of state, who shall issue his warrant on the state treasury for the amount due such appointee: Provided, That if the absence of said judge be caused by his sickness, such appointee shall be paid a like amount, and in like manner, as provided for the payment of appointees in section second hereof.

This section was not repealed by any of the statutes of 1881, providing for the appointment of special judges. State v. Murdock, 86 Ind. 124; Bowlus v. Brier, 87 Ind. 391; Burrell v. State, 129 Ind. 290.

[1881 S., p. 240. In force September 19, 1881.]

1448. (1384.) Special judges in vacation.-866. Whenever, in vacation, the judge of any court is asked to grant an interlocutory or special order, and such judge is interested in the cause or incompetent, he shall take no other steps in such matter except to fix another time and place for such hearing, and call some other judge to act in such proceeding. Or if it shall be difficult, in the opinion of such judge, for any cause, to procure the attendance of another judge, such judge, in order to prevent delay, may appoint any competent and disinterested attorney of this state to act as judge in such proceeding, who, if he consent to act, shall be qualified as other judges; and his appointment and oath shall be filed with the papers in such proceeding. And such judge or attorney, so called or appointed, shall have the same power, during such vacation, to hear and determine such matter, and grant or refuse the order prayed for, as if he were the regular judge of said court.

[1881 S., p. 557. In force April 15, 1881.]

1449. (1385.) Jury commissioners-Oath-Instructions.-1. The circuit court shall, during the last term beginning in each calendar year, appoint for the next calendar year two persons as jury commissioners, who shall be freeholders and voters of the county, well known to be of opposite politics, and of good character for intelligence, morality and integrity, and cause them to appear and take an oath or affirmation in open court, to be entered of record upon the orderbook of the court in the following form: "You do solemnly swear (or affirm) that you will honestly, and without favor or prejudice, perform the duties of jury commissioners during your term of office; that, in selecting persons to be drawn as jurors, you will select none but persons whom you believe to be of good repute for intelligence and honesty; that you will select none whom you have been or may be re