State ex rel. Balsley v. St. Joseph Superior Court No. 1, 28483.

• Decision Date: 05 October 1948
• Docket Number: No. 28483.,28483.
• Citation: 81 N.E.2d 373,226 Ind. 372
• Parties: STATE ex rel. BALSLEY v. ST. JOSEPH SUPERIOR COURT NO. 1 et al.
• Court: Indiana Supreme Court

226 Ind. 372

81 N.E.2d 373

STATE ex rel. BALSLEY

v.ST. JOSEPH SUPERIOR COURT NO. 1 et al.

No. 28483.

Supreme Court of Indiana.

Oct. 5, 1948.

Original action in prohibition by the State of Indiana, on the relation of Lowell G. Balsley, against St. Joseph Superior Court No. 1 of St. Joseph County, Ind., and another to restrain respondents from striking out relator's motion for a new trial filed in a divorce action.

Petition denied.

George Sands, of South Bend, for relator.

William A. Bertsch, of South Bend, for respondents.

STARR Judge.

This is an original action wherein the relator seeks a writ of prohibition against the St. Joseph Superior Court, No. 1, and William A. Bertsch as special judge thereof. The material allegations of relator's petition are as follows: That on December 30, 1941, one Irene Balsley filed in the St. Joseph Superior Court No. 2 her complaint against the above named relator for divorce; that thereafter said cause was transferred to the respondent court and respondent, William A. Bertsch was appointed special judge of said court to try said cause of action; that thereafter on the 30th day of June, 1948, a trial was had therein and a judgment was rendered granting the said Irene Balsley a decree of divorce from the said relator, and it was adjudged therein that she have and recover from him alimony in the sum of $3,500 together with attorney fees and costs; that thereafter on the 23rd of July, 1948, the relator filed in said cause of action his motion for a new trial which motion is now pending; that on the 24th day of September, 1948, Irene Balsley as plaintiff in said cause of action as above indicated, filed herein her written motion to strike said motion for a new trial for the reason that since the rendition of said judgment, the relator has remarried and by virtue of the remarriage, has confirmed and ratified the judgment of the respondent court granting a divorce to Irene Balsley and making settlement of the property rights between all the parties, and that there remains no other or further question which might be subject to a new trial or modification of said judgment; that thereafter the said relator filed its motion to strike from the files and records, the motion of Irene Balsley, for the reason that the respondent court was without jurisdiction to strike relator's motion for a new trial, which motion has now been overruled by the respondent court, that the respondent court has indicated in open court...