State ex rel. Garber v. Circuit Court of Kosciusko County, 29953

• Decision Date: 22 November 1960
• Docket Number: No. 29953,29953
• Citation: 241 Ind. 133,170 N.E.2d 370
• Parties: STATE of Indiana, on the relation of Robert F. GARBER, Relator, v. CIRCUIT COURT OF KOSCIUSKO COUNTY, State of Indiana, and Seth E. Rowdabaugh, as Judge of the Circuit Court of Kosciusko County, Indiana, Respondents.
• Court: Indiana Supreme Court

Page 370

170 N.E.2d 370

241 Ind. 133

STATE of Indiana, on the relation of Robert F. GARBER, Relator, v. CIRCUIT COURT OF KOSCIUSKO COUNTY, State of Indiana, and Seth E. Rowdabaugh, as Judge of the Circuit Court of Kosciusko County, Indiana, Respondents.

No. 29953.

Supreme Court of Indiana.

Nov. 22, 1960.

Solly K. Frankenstein and Richard C. Ver Wiebe, Fort Wayne, for appellant.

Seth E. Rowdabaugh, Warsaw, pro se, for appellees.

JACKSON, Chief Justice.

This is an original action on a petition for writ of mandamus and prohibition against the Kosciusko Circuit Court of Kosciusko County, Indiana, and Seth E. Rowdabaugh, regular judge thereof. Relator avers that on the 4th day of May 1960, in cause No. 5470 pending in the Kosciusko Circuit Court entitled State of Indiana v. Robert F. Garber, there was filed on behalf of such named defendant, an affidavit for a change of venue from the judge of said court on account of the bias and prejudice of said judge against said defendant.

That on that date the respondent judge overruled defendants affidavit for change of venue from the judge and set the cause for arraignment on May 25, 1960.

On May 14, 1960, an alternative writ of mandate and prohibition was issued by this court, ordering the respondent to grant the change of venue filed by the defendant in cause No. 5470, and further ordering the respondent to refrain from proceeding further or exercising jurisdiction in said cause or to whow cause on or before June 3, 1960, why such writ should not be made permanent.

Respondent filed return to such writ on June 2, 1960, showing that on May 25, 1960, defendant's motion and affidavit for change of judge was resubmitted, said motion granted and a panel submitted for striking to select a special judge in said cause.

It now appearing that the remedy sought by the writ has been granted, and that the issue presented by this proceeding is now moot, the alternative writ heretofore issued is now dissolved and a permanent writ denied.

ARTERBURN, ACHOR, BOBBITT and LANDIS, JJ., concur.