State ex rel. Bryant v. Warrick Circuit Court

• Decision Date: 07 December 1953
• Docket Number: No. 29115,29115
• Citation: 115 N.E.2d 742,232 Ind. 655
• Parties: . Supreme Court of Indiana
• Court: Indiana Supreme Court

Page 742

115 N.E.2d 742

232 Ind. 655

STATE ex rel. BRYANT et al. v. WARRICK CIRCUIT COURT et al.

No. 29115.

Supreme Court of Indiana.

Dec. 7, 1953.

Jacobs & Noland, Indianapolis, Raymond R. Poliakoff, Boonville, for appellant.

Addison M. Beavers, pro se.

BOBBITT, Judge.

Relators, by this action, seek to compel the Warrick Circuit Court to grant a change of judge in a proceeding for the custody of a child under Acts 1907, ch. 41, § 3, p. 59, being § 9-2808, Burns' 1942 Replacement, and Acts 1945, ch. 356, § 16, p. 1724, being § 9-3216, Burns' 1942 Repl. (1953 Cum.Supp.).

The petition for custody was filed in the Warrick Circuit Court on June 4, 1953, and recited that the child in question was born to relator Hazel Irene Duff Bryant on February 18, 1949; that the child has been illegally held by the Warrick County Department of Public Welfare from the date of its birth; that the child was taken without the morther's consent and the custody and control illegally given to such Department of Welfare; and that she never abandoned said child and requests that she now be given its care and custody.

We issued an alternative writ of mandate commanding respondents to sustain and grant the motion for change of venue from the judge or, in default thereof, to show cause, if any, why such motion should not be granted Respondents duly filed their return and response alleging that relators were not entitled to a change of judge in such proceedings 'at the time the ruling of the Court denying a change of judge was entered' because such proceedings were not adversary.

Respondents rely upon State ex rel. Stockton v. Leopold, 1949, 227 Ind. 426, 86 N.E.2d 530, to support their position. That case was an original action in this court seeking a writ of mandate to compel the granting of a change of venue in the administration of an estate. In construing Acts 1935, ch. 71, § 1, p. 199, being § 2-1403, Burns' 1946 Repl., which was relied upon to support the request for a change of venue in that case, this court, at page 431, 227 Ind., at page 532, 86 N.E.2d, said:

'This statute contemplates that there will be adverse parties in the 'action, proceeding or matter' and that a trial will be required to have the issue determined.'

Respondents assert that this language is applicable to the statute under which relators herein are proceeding.

Acts 1945, ch. 356, § 16, p. 1724, being § 9-3216, Burns' 1942 Repl. (1953 Cum.Supp.), supra, relating to the change or revocation of an order of commitment made by the court in the case of a child provides, among other things, 'If the court is of the opinion that an investigation should be had, it may, upon due notice to all concerned, proceed to hear and determine the question at issue.'

The case at bar is clearly distinguishable from the Leopold case in that there the matter involved was the simple administration of an estate wherein no adversary proceedings were pending.

Even though the rule announced in the Leopold case, and relied upon here by respondents, were applicable to the statutes here under consideration, a question which we need not decide, it lends no support to...