State ex rel. Brooking v. Branyan

• Decision Date: 20 February 1903
• Citation: 66 N.E. 464,30 Ind.App. 502
• Parties: STATE ex rel. BROOKING v. BRANYAN.
• Court: Indiana Appellate Court

30 Ind.App. 502

66 N.E. 464

STATE ex rel. BROOKING

v.BRANYAN.

Appellate Court of Indiana, Division No. 1.

Feb. 20, 1903.

Application on the relation of John Brooking for writ of mandate to James C. Branyan. Writ denied.

Watkins & Morgan, for applicant.

ROBINSON, J.

The relator applies to this court for a writ of mandate requiring appellee, as judge of the Huntington circuit court, to make his ruling on a motion for a new trial, and to render final judgment in a certain action pending in that court. It appears that in March, 1902, the relator filed an application in the Huntington circuit court to have a certain person declared of unsound mind. The case was submitted to a jury for trial on April 2, 1902, and two days thereafter the jury, having been unable to agree, was discharged. On the 26th day of June, 1902, the case was again submitted to a jury, and on the next day returned a verdict in favor of the defendant. On the 30th day of June the relator filed his written motion for a new trial. Between that time and the 12th day of January, 1903, the application states that the relator requested the court “seventy-five or eighty times” to rule on the motion for a new trial, which the court refused to do up to the filing of this application. It is further stated that on October 21, 1902, the relator filed his motion to tax the costs, and requested the court to rule thereon, which the court at that time and ever since has refused to do, though often requested. The relator also states that he desires to appeal to settle the question of costs in the case now pending in the Huntington circuit court.

It was held in Studabaker v. Markley, 7 Ind. App. 368, 34 N. E. 606, that in an application to have a person adjudged of unsound mind, where the finding is that the person charged is not of unsound mind, the proceeding is at an end, and no appeal from such a determination is contemplated or can be allowed. The motion for a new trial, which is made a part of the application, presents questions which go to the merits of the appeal only. Should the motion be overruled, and an appeal taken, we could review none of the questions presented by the motion. As this court is authorized to issue a writ of mandate “only when necessary for the exercise of its functions and powers” (Burns' Rev. St. 1901, §§ 1181, 1349; State ex rel. v. Woodhull, 27 Ind. App. 576, 61 N. E. 794), it could not issue the writ in any case that is not appealable. As we could not...