State ex rel. Cox v. Superior Court of Marion County, 29204

• Citation: 233 Ind. 531,121 N.E.2d 881
• Decision Date: 04 October 1954
• Docket Number: No. 29204,29204
• Parties: . Supreme Court of Indiana
• Court: Indiana Supreme Court

Page 881

121 N.E.2d 881

233 Ind. 531

STATE of Indiana on Relation of Karen O. COX v. SUPERIOR COURT OF MARION COUNTY, Room 3, Lewis Davis Special Judge, Superior Court Room 3, Marion County, Indiana.

No. 29204.

Supreme Court of Indiana.

Oct. 4, 1954.

Townsend & Townsend, Indianapolis, for relatrix.

Robert D. Symmes, Indianapolis, for respondent.

GILKISON, Judge.

On July 14, 1954, relatrix filed her original action in this court asking that a temporary writ of prohibition issue commanding respondents to refrain from making further orders in cause No. B-41751, entitled Karen O. Cox v. J. Vernon Cox, in respondent court, and that respondents show cause why the temporary writ should not be made permanent.

We issued the temporary writ.

Respondents filed their response herein on July 26, 1954.

The petition shows that relatrix obtained a decree of divorce and was awarded the custody of her child, in a divorce action against her husband on December 18, 1945. That her divorced husband filed a petition for modification of the custody order, on July 2, 1954. On July 13, 1954, relatrix filed her affidavit for change of judge in the proceedings which was sustained by the court and the court then peremptorily named Lewis Davis as special judge in the cause. That the court refused to name a panel of three judges as required by Rule 1-12 of the Indiana Supreme Court. That the special judge so selected had set the matter for hearing and that he will make determinations adverse to relatrix unless prohibited.

The response admits that respondent court refused to name a committee of three qualified judges or lawyers from which the parties might each strike one and that the judge named respondent Lewis Davis a practicing attorney as special judge.

The response further contends that the method of the appointment of a special judge, at most is only an error and therefore could be corrected only on appeal.

Other contentions are made relative to the several statutes concerning change of venue and change of judge. Except for the causes for change these have become extinct by reason of the adoption of Rule 1-12 of the Supreme Court. Acts 1937, Ch. 91, § 1, p. 459, Sec. 2-4718, Burns' 1946 Repl. provides as follows:

'Pleading and practice--Supreme Court authorized to adopt rules.--All statutes relating to practice and procedure in any of the courts of this state shall have, and remain in, force and effect only as herein provided. The Supreme Court shall have the power to adopt, amend and rescind rules of court which shall govern and control practice and procedure in all the courts of this state; such rules to be promulgated and to take effect under such rules as the Supreme Court shall adopt, and thereafter all laws in conflict therewith shall be of no further force or effect. The purpose of this act (## 2-4718, 2-4719) is to enable the Supreme Court to simplify and abbreviate the pleadings and proceedings; to expedite the decision of causes; to remedy such abuses and imperfections as may be found to exist in the practice; to abolish all unnecessary forms and technicalities in pleading and practice and to abolish fictions and unnecessary process and proceedings. (Acts 1937, ch. 91, § 1, p. 459.)'

By this act the legislature abandoned such rights as it might have under Art. 7, Sec. 4, of the state constitution to place 'regulations and restrictions' upon the jurisdiction of the Supreme Court, particularly with respect to 'rules of court which shall govern and control practice and procedure in all the courts of this state'. By that Act the Supreme Court was given the power to adopt, amend and rescind rules of court governing and controlling practice and procedure in all the courts of the state. It is provided therein that, such rules are to be 'promulgated and to take effect under such rules as the Supreme Court shall adopt, and thereafter all laws in conflict therewith shall be of no further force or effect.'

This statute has been in force and effect for some seventeen years. Subdivision 3 of Rule 1-12 of the Supreme Court was adopted and made effective September 1, 1948. The rule provides by its first sentence:...