State ex rel. Ferger v. Circuit Court of Marion County
| Decision Date | 19 March 1949 |
| Docket Number | 28524. |
| Parties | STATE ex rel. FERGER v. CIRCUIT COURT OF MARION COUNTY et al. |
| Court | Indiana Supreme Court |
Leo X. Smith, John F. Watkins and O. S. Boling, all of Indianapolis, for relator.
Lloyd D. Claycombe, Judge and Raymond F. Murray, of Indianapolis for respondents.
This is an original action brought by the relator against the Circuit Court of Marion County, Indiana, and the Judge thereof, for a writ of prohibition, prohibiting the court from continuing to assume jurisdiction in a suit for specific performance of an option to purchase certain real estate contained in a lease hereinafter described. A temporary writ of prohibition has been heretofore issued.
On April 11, 1940, relator entered into a lease with the Perine Oil Refining Company, Inc., leasing to said company specific real estate. The lease also contained an option to purchase the real estate.
A complaint for reformation of the description of the real estate leased to the Perine Oil Refining Company, Inc., was filed on February 27, 1945, in the Superior Court of Marion County, Room 2, by the lessor against the lessee.
On September 18, 1945, the lessee filed its complaint in the Circuit Court of Marion County against the lessor, Otto D Ferger, for specific performance of the option to purchase the real estate described in the lease. A plea in abatement was filed by the relator alleging, among other things, that the cause of action pending in the Superior Court of Marion County, Room 2, had been commenced first, was then pending and involved the same subject matter. The Perine Oil Refining Company, Inc., filed a motion to strike out the plea in abatement, which motion was sustained. Thereupon a verified motion for a change of judge was filed by the relator, which motion has been overruled, a change of judge was denied, and the cause of action has been set for trial.
The action filed in the Superior Court of Marion County, Room 2 has been heard and determined, and an appeal has been taken by the relator to the Appellate Court of Indiana, where the same is now pending.
This original action is in two paragraphs, the first to prohibit the respondents from making further orders in said cause, or proceeding to the trial thereof, and the second is for a writ of mandate, asking this court to issue a mandate against the respondent Judge, commanding him to grant relator's motion for a change of judge, providing a writ of prohibition is not issued against said respondents.
The complaint filed by the relator in the Superior Court of Marion County, Room 2, against the Perine Oil Refining Company, Inc., for reformation, and the complaint filed by the Perine Oil Refining Company, Inc., in the Circuit Court of Marion County, against the relator for specific performance, involve the same subject matter, namely the rights of the parties under the lease. They also involve the same parties. McArthur v. Moffett, 1910, 143 Wis. 564, 128 N.E. 445, 33 L.R.A., N.S., 264; see, also, 11 Ind.Law Journal, p. 324. Therefore the court first having jurisdiction of the subject matter and the parties now has exclusive jurisdiction until the case in that court is finally disposed of on appeal or otherwise. State ex rel. Indianapolis Rys., Inc., v. Superior Court of Marion County, Ind.Sup.1947, 74 N.E.2d 912; State ex rel. James v. Marion Superior Court, 1943, 222 Ind. 26, 51 N.E.2d 844; State ex rel. Tuell v. Shelby Circuit Court, 1939, 216 Ind. 231, 23 N.E.2d 425, 134 A.L.R. 1238.
In State ex rel. Kunkel v. Laporte Circuit Court, 1936, 209 Ind. 682, 693, 694, 200 N.E. 614, 618, Judge Fansler very ably stated the law of the concurrent jurisdiction of courts when he said:
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