Johnston v. State
| Decision Date | 20 September 1937 |
| Docket Number | No. 26628.,26628. |
| Citation | 10 N.E.2d 40,212 Ind. 375 |
| Parties | JOHNSTON v. STATE et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Fayette Circuit Court; G. Edwin Johnston, Judge.
On petition for rehearing.
Petition denied.
For former opinion, see 8 N.E.(2d) 590.Dailey, O'Neal, Dailey & Efroymson, of Indianapolis, Chas. C. Benedict, and E. Ralph Himelick, of Connersville, for appellant.
Henry M. Dowling, of Indianapolis, for appellees.
Appellees, in support of their petition for rehearing, contend that the opinion in this case in effect overrules decisions accepted as the unquestioned law in this state, especially the case of Shideler, Auditor, v. Martin (1922) 192 Ind. 574, 136 N.E. 1, 3,137 N.E. 528, and that if the latter case is not followed it should be expressly overruled.It was thought that the Shideler Case was not directly in point, since it deals with the right to appeal rather than with the right to a change of venue. But it does hold that a proceeding under the statute here involved is not a civil action, and to that extent clearly conflicts with the opinion in the instant case.
It is recognized in the Shideler Case that, by the so-called ‘appeal’ from the action of the auditor, that officer's ministerial discretion may not be reviewed, but that judicial questions affecting the legality of his action, or the statute under which he acted, may be considered by the court, and that such judicial questions ‘might have been brought before the court for determination by proper proceedings, even if there had been no statute authorizing an appeal.’ The entire effect of the provision of the statute providing for the ‘appeal’ to the circuit court is therefore merely to provide a method of procedure by which the judicial questions sought to be raised may be brought before the court. If no such provisions were made by the statute, the action would be by complaint against the auditor seeking injunction or other equitable relief. It would be an adversary proceeding for the enforcement of private rights. It would not be a civil action in the sense that a trial by jury might be demanded, but it would be a civil action in the sense that a change of venue might be had, and an appeal might be taken to this court. It is said that an appeal from an assessment of omitted property lacks many of the features of a civil action. Those referred to are: ‘The lack of formal issues-indeed, of any pleadings at all-and of adversary parties, in any proper sense of the term, and the summary character necessarily given to the proceeding by the manner in which the auditor makes his assessment, from which the appeal is taken, and the method of taking the appeal, all distinguish the case at bar from those cited, and from other civil actions.’ But it will be noted that in claims against estates there are no formal issues...
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Sonleitner v. Superior Court In and For Los Angeles County
...v. Dept. of Finance, 374 Ill. 494, 30 N.E.2d 34, 36; Mix v. People, 86 Ill. 312, 313; Johnston v. State, 212 Ind. 375, 8 N.E.2d 590, 10 N.E.2d 40, 41; Davis v. City of Clinton, 55 Iowa 549, 8 N.W. 423, 424; Thomas Forman Co. v. Owsley County Board of Supervisors, 267 Ky. 224, 101 S.W.2d 939......
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State ex rel. Dunn v. Lake Juvenile Court, 30940
...the right thereto.' This court has previously decided the question here involved in Johnston v. State (1937), 212 Ind. 375, 8 N.E.2d 590, 10 N.E.2d 40. In that case the question of the right to a change of venue is ably discussed at some length at pages 377, 378 and 379, 8 N.E.2d at page 59......
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State ex rel. Allen v. Fayette Circuit Court, 28471.
...as such not being subject to a verified motion for a change of venue from the county. Johnston v. State, 1937, 212 Ind. 375, 8 N.E.2d 590,10 N.E.2d 40. We are of the opinion the change of venue from the judge may be had under § 2-1402, Burns' 1946 Replacement, in a proceeding for a writ of ......