First Merchants Nat. Bank & Trust Co. v. Crowley

• Decision Date: 19 October 1943
• Docket Number: 27887.
• Court: Indiana Supreme Court
• Parties: FIRST MERCHANTS NAT. BANK & TRUST CO. v. CROWLEY et al.

50 N.E.2d 918

221 Ind. 682

FIRST MERCHANTS NAT. BANK & TRUST CO. v. CROWLEY et al.

No. 27887.

Supreme Court of Indiana

October 19, 1943

Vaughan & Vaughan, of Lafayette, for petitioner.

Jay E. Darlington, of Hammond, Walter Myers, Donald L. Smith, and Walter Myers, Jr., all of Indianapolis, and Crumpacker &amp Friedrich, of Hammond, for respondents.

SWAIM Chief Justice.

The petitioner, First Merchants National Bank and Trust Company of Lafayette, Indiana, has filed in this court its petition for writ of certiorari, directed to the Appellate Court ordering that court to certify and send to this court, a full and complete transcript of the record and briefs in cause number 16670, entitled Timothy W. Crowley, as administrator of the estate of P. Edward Fardy, deceased, et al. v. First Merchants National Bank of Lafayette, Indiana, et al., in order that said cause may be reviewed and determined by this court and the judgment of the Appellate Court therein reversed.

On May 9, 1942, the Appellate Court reversed the judgment of the trial court in said cause. Crowley et al. v. First Merchants National Bank of Lafayette et al., Ind.App.1942, 41 N.E.2d 669. A petition for a rehearing therein was overruled and thereafter, on September 18, 1942, a petition to transfer the cause to this court was dismissed because of failure to comply with rule 2-23 of the Rules of the Supreme Court, 1940 Revision. This petition for a writ of certiorari is therefore, a second attempt on the part of the petitioner to have this court consider and determine said cause.

In a discussion of the question of common-law writs of certiorari in 10 Am.Jur. § 5, p. 527, we find the following language: 'Primarily there are two classes of cases, in which a common-law writ of certiorari will lie: First, whenever it is shown that the inferior court or tribunal has exceeded its jurisdiction; second, whenever it is shown that the inferior court or tribunal has proceeded illegally, and no appeal is allowed or other mode provided for reviewing its proceedings. The petitioner must generally establish either that the proceedings are infected with some fatal irregularity rendering them absolutely void, or that the jurisdiction of the cause did not belong to the tribunal which assumed it but to a different tribunal, or else that the cause is one not within the limits of judicial power. In other words, the inquiry contemplated is as to the power of the court and not the irregularity or correctness of its action * * *.'

Even under this broad general statement as to when a common-law writ of certiorari will lie, the petition in this case would have to be denied because here the petitioner has not sought to question the jurisdiction of the court; and by a petition to transfer to this court, as interpreted in Warren v. Indiana Telephone Company, 1940, 217 Ind. 93, 26 N.E.2d 399, the petitioner had an adequate method for securing a review of the decision of the Appellate Court. The fact that it did not utilize the available mode of securing a review of the decision would not entitle the petitioner to the extraordinary remedy of a common-law writ of certiorari.

In Devoss v. Jay et al., 1860, 14 Ind. 400, the court had the following to say concerning an attempted second appeal from the same judgment: 'The judgment of the Court below, from which the former appeal was taken, was by this Court affirmed. Now another appeal is here from the same judgment, but the record has been perfected since that decision, so as to present points that could not be then considered. This Court then passed upon all points that could be raised upon the record, as the parties chose to submit it. Then was the time to perfect the record, before the judgment of this Court was pronounced. If parties elect to take the opinion of the Court upon an imperfect record, we cannot see where litigation would end, if, by supplying some omitted part of the record, they could again bring another and another appeal from the same judgment. The question whether the record would be a bar to another suit is not before us.'

In Warner et al. v. Campbell et al., 1872, 39 Ind. 409, this court, in denying a petition for rehearing which had been asked for the purpose of giving the losing party an opportunity to have the record amended and corrected, said: 'It has not been the practice of this court to grant a rehearing that the record may be amended. Such a practice could not be allowed. It is not the practice in any court to allow a new trial or a rehearing, merely that the party may amend his pleadings and present the case in a new form. We should make little progress in the business on the docket of the court, should we allow such a practice.'

In its brief, in support of its petition for...