State ex rel. Gilbert v. Circuit Court of Kosciusko County
Decision Date | 15 November 1960 |
Docket Number | No. 29865,29865 |
Citation | 170 N.E.2d 51,241 Ind. 122 |
Parties | STATE of Indiana, on the relation of Royden C. GILBERT, as Commissioner of Motor Vehicles of the State of Indiana, and Allan A. Rasor, Prosecuting Attorney of the 54th Judicial Circuit of the State of Indiana, Relators, v. CIRCUIT COURT OF KOSCIUSKO COUNTY and Seth E. Rowdabaugh, as Judge of said Circuit Court of Kosciusko County, Respondents. |
Court | Indiana Supreme Court |
Edwin K. Steers, Atty. Gen., by John E. Hirschman, Deputy Atty. Gen., Allan A. Rasor, Pros. Atty., Warsaw, for relators.
Byron C. Kennedy, Rockhill, Vanderveer, Kennedy & Lee, Warsaw, for respondents.
This is an original action for a writ of prohibition instituted by the relators. The temporary writ was issued on October 28, 1959. Subsequently a response and briefs were filed herein.
The record before us discloses that on or about July 24, 1959, one James W. Warren filed his petition for a restricted driving permit in the Circuit Court of Kosciusko County, Indiana, being cause number 29,292 on the dockets thereof, seeking relief under the provisions of Acts 1959, ch. 369, being § 47-2716 et seq., Burns' 1960 Cum.Supp.
The defendants to the action, Allan A. Rasor, Prosecuting Attorney, 54th Judicial Circuit and Howard G. Holbrook, Sheriff of Kosciusko County, Indiana, each entered a general appearance to the action. The defendant, Royden C. Gilbert, Commissioner of Motor Vehicles, appeared specially by the Attorney General and filed a motion to dismiss the action, alleging no jurisdiction in the trial court. Thereafter the Prosecuting Attorney filed a demurrer to the petition alleging therein, (1) that the Court does not have jurisdiction of the subject matter, (2) that the petition does not state facts sufficient to constitute a cause of action.
Thereafter on October 13, 1959, the trial court overruled both the motion to dismiss the petition and the demurrer. On October 16, 1959, the Prosecuting Attorney filed an answer in admission and denial to the petition and on October 30, 1959, the temporary writ was served on the respondent.
The issues herein are joined upon a construction of Acts 1959, ch. 369, § 2, p. 990, being § 47-2717 Burns' 1960 Cum.Supp., supra, which reads,
'* * * The following information shall be included in said petition:
'(a) * * *
'(b) that he has never been convicted of a similar offense or been suspended for a similar reason before; * * *' and the compliance the petitioner made in his petition wherein he alleged:
The relators question the jurisdiction of the trial court over the subject matter of the action, claiming that Acts 1959, ch. 369, § 2(b), supra, constitutes a jurisdictional condition precedent.
By the enactment of Acts 1959, ch. 369, supra, the legislature provided a new remedy for the relief of the hungry and suffering dependents of the family provider, who suffer as a result of the suspension of the provider's motor vehicle operator's permit. The whole class of such dependents are included. They are not divided into two classes, to-wit:
(1) dependents of a provider with one suspension against him to have relief; and
(2) those of a provider with two or more suspensions against him who are to have no relief.
Jurisdiction is of three sorts:
1. Jurisdiction over the persons and parties to the action.
2. Jurisdiction over the subject matter of the cause.
3. Jurisdiction over the particular case before the court. State ex rel. Johnson v. Reeves, Judge, etc. et al., 1955, 234 Ind. 225, 228, 125 N.E.2d 794.
The record in the instant case discloses that summons was lawfully served on the respondents herein and return made thereon, thus conferring jurisdiction under one above. Power to hear is jurisdiction thus...
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