State ex rel. 1625 E. Washington Realty Co. v. Markey, No. 26846.

Docket NºNo. 26846.
Citation7 N.E.2d 989, 212 Ind. 59
Case DateApril 30, 1937
CourtSupreme Court of Indiana

212 Ind. 59
7 N.E.2d 989

STATE ex rel. 1625 E. WASHINGTON REALTY CO.
v.
MARKEY, Judge.

No. 26846.

Supreme Court of Indiana.

April 30, 1937.


Original action by the State, on the relation of 1625 E. Washington Realty Company, for a writ of prohibition against Joseph T. Markey, Judge, Superior Court of Marion County, to restrain the making of further orders in a certain cause, and from enforcing provisions of order theretofore made.

Temporary writ made permanent.

[7 N.E.2d 990]

Carl E. Stillwell, of Indianapolis, for appellant.

Samuel J. Mantel and C. Severin Buschman, both of Indianapolis, for appellee.


HUGHES, Judge.

It appears that on the 19th day of March, 1937, one Mildred B. Pearson filed her complaint for a judgment in the sum of $150 upon a preferred stock certificate and for the appointment of a receiver, in the superior court of Marion county, room 1, cause No. A-92806. That thereafter on the 22d day of March, 1937, the relator herein filed with the clerk of the superior court of Marion county, Ind., its affidavit for change of judge on account of the bias and prejudice of said judge and objecting to the Honorable Joseph T. Markey, judge from whom the change of venue was taken, himself selecting the judge or submitting a list of names from whom a judge may be selected to try the case, all pursuant to chapters 85 and 290 of the General Assembly of 1937.

On the 22d day of March, 1937, the Honorable Joseph T. Markey, as judge of said court, made and signed the following order:

‘Comes now the Court and it having been called to the attention of the Court that an affidavit for change of venue from the judge has been filed herein pursuant to section 1, chapter 85 of the Acts of the General Assembly of Indiana, for the year 1937;

‘And the Court having examined said affidavit and being cognizant of the fact that a question has been raised in the

[7 N.E.2d 991]

Supreme Court of this State as to the validity and constitutionality of this Act, the Court now finds that the Clerk of this Court should be directed and ordered to not certify such affidavit or facts to the Clerk of the Supreme Court until further order of this Court.’

On the 29th day of March, 1937, the relator filed in this court a petition for a writ of prohibition to be issued against the superior court of Marion county, room 1, and Joseph T. Markey as judge of said court, to restrain them from making any further orders in said cause and from enforcing the provisions of the order heretofore made. A temporary writ of prohibition was issued and a response has been filed by the Honorable Joseph T. Markey as judge of said court.

It appears that the affidavit for a change of judge filed by the relator Realty Company was in proper form and sufficient as provided for in chapters 85 and 290 of the General Assembly of 1937. The first part of the affidavit went to the bias and prejudice of the judge as provided for in chapter 290, and the latter part went to the objection of the judge, himself selecting a judge or submitting a list from which to select a judge, as provided for in chapter 85.

The affidavit for the change of judge was executed by Samuel H. Creighton, as secretary-treasurer of the Realty Company. Some contention is made that he had no authority to execute the affidavit. We think there is no merit to this contention and cite the case of Fidelity & Casualty Co. v. Carroll (1917) 186 Ind. 633, 637, 117 N.E. 858, 859, where it is said: ‘* * * the affidavit [for a change of venue] required by the statute must be made by an executive or administrative officer of the corporation, such as the president, vice president, secretary, or treasurer, and not by an agent or attorney.’

It is further contended that chapter 85 does not apply to civil cases and that there are no provisions in said act relating to the method of submitting a list of persons to act as judges in civil cases or in selecting a judge from said list.

It must be conceded that said chapter applies to criminal cases, and we think it also applies to civil cases. The title of the act contained in chapter 85 is as follows: ‘An Act concerning proceedings in criminal or civil cases and to secure the impartial selection of judges in criminal or civil cases, and declaring an emergency.’

It cannot be questioned that the title is broad enough to cover both criminal and civil cases. It expressly includes both. The first part of section 1 includes both civil and criminal cases. It says: ‘That if the prosecuting attorney or plaintiff or the defendant in any criminal or civil case shall include in his affidavit. * * *’

It later uses the language: ‘* * * it shall be the duty of the clerk of said court where said...

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13 practice notes
  • Grave v. Kittle, No. 18184
    • United States
    • Indiana Court of Appeals of Indiana
    • November 28, 1951
    ...will seek a construction that avoids unconstitutionality.' And in State ex rel. 1625 E. Washington Realty Co. v. Markey, Judge, 1936, 212 Ind. 59, 63, 7 N.E.2d 989, 991, the court said: 'In construing an act, we must look both to the title and the body of the act. We think the title of the ......
  • State ex rel. State Corp. Comm'n v. Old Abe Co., No. 4418.
    • United States
    • New Mexico Supreme Court of New Mexico
    • September 12, 1939
    ...with the body, gives a clear idea of the intention of the Legislature.” State ex rel. 1625 East Washington Realty Co. v. Markey, 212 Ind. 59, 7 N.E.2d 989, 991. The Constitution of New York requires that the subject of all bills of local or private nature shall be expressed in the title. It......
  • U.S. Steel Corp. v. Northern Indiana Public Service Co., Inc., No. 2-385
    • United States
    • Indiana Court of Appeals of Indiana
    • December 23, 1985
    ...Town of Homecroft v. Macbeth (1958), 238 Ind. 57, 148 N.E.2d 563, 567; State ex rel. 1625 East Washington Realty Co. v. Markey (1937), 212 Ind. 59, 7 N.E.2d 989, 993; Zoercher v. Indiana Associated Telephone Corp. (1937), 211 Ind. 447, 7 N.E.2d 282, 285. Thus, by definition U.S. Steel will ......
  • Cordial v. Grimm, No. 3--974A161
    • United States
    • April 28, 1976
    ...in their entirety, including their title, to determine legislative intent; State ex rel. 1625 E. Wash. R. Co. v. Markey, Judge (1937), 212 Ind. 59, 7 N.E.2d 989; Board Comrs. v. Bd. Sch. Comrs. of Indpls. (1960), 130 Ind.App. 506, 166 N.E.2d 880, and such statutory titles should be liberall......
  • Request a trial to view additional results
13 cases
  • Grave v. Kittle, No. 18184
    • United States
    • Indiana Court of Appeals of Indiana
    • November 28, 1951
    ...will seek a construction that avoids unconstitutionality.' And in State ex rel. 1625 E. Washington Realty Co. v. Markey, Judge, 1936, 212 Ind. 59, 63, 7 N.E.2d 989, 991, the court said: 'In construing an act, we must look both to the title and the body of the act. We think the title of the ......
  • State ex rel. State Corp. Comm'n v. Old Abe Co., No. 4418.
    • United States
    • New Mexico Supreme Court of New Mexico
    • September 12, 1939
    ...with the body, gives a clear idea of the intention of the Legislature.” State ex rel. 1625 East Washington Realty Co. v. Markey, 212 Ind. 59, 7 N.E.2d 989, 991. The Constitution of New York requires that the subject of all bills of local or private nature shall be expressed in the title. It......
  • U.S. Steel Corp. v. Northern Indiana Public Service Co., Inc., No. 2-385
    • United States
    • Indiana Court of Appeals of Indiana
    • December 23, 1985
    ...Town of Homecroft v. Macbeth (1958), 238 Ind. 57, 148 N.E.2d 563, 567; State ex rel. 1625 East Washington Realty Co. v. Markey (1937), 212 Ind. 59, 7 N.E.2d 989, 993; Zoercher v. Indiana Associated Telephone Corp. (1937), 211 Ind. 447, 7 N.E.2d 282, 285. Thus, by definition U.S. Steel will ......
  • Cordial v. Grimm, No. 3--974A161
    • United States
    • April 28, 1976
    ...in their entirety, including their title, to determine legislative intent; State ex rel. 1625 E. Wash. R. Co. v. Markey, Judge (1937), 212 Ind. 59, 7 N.E.2d 989; Board Comrs. v. Bd. Sch. Comrs. of Indpls. (1960), 130 Ind.App. 506, 166 N.E.2d 880, and such statutory titles should be liberall......
  • Request a trial to view additional results

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