State ex rel. Gilbert v. Circuit Court of Kosciusko County

Decision Date15 November 1960
Docket NumberNo. 29865,29865
Citation170 N.E.2d 51,241 Ind. 122
PartiesSTATE 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.
CourtIndiana 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.

JACKSON, Chief Justice.

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:

'4. That the petitioner has three times been convicted of the offense of driving a motor vehicle while under the influence of intoxicating liquor, the first of which conviction was had on the ___ day of _____, 1947 in the Justice Court of Loren Melick, Justice of the Peace in and for Wayne Township, Kosciusko County, Indiana, the second in the same court the eighteenth day of January, 1954, and the third in the Fulton Circuit Court on the eleventh day of June, u958; and that the plaintiff has not been convicted of any similar offense or offenses nor has his license to operate a motor vehicle been suspended or revoked for a similar reason other than on the occasions of said three former convictions.

'5. That by the terms of judgment of the Fulton Circuit Court made and entered on the eleventh day of June, 1958, as aforesaid, the petitioner was assessed a fine in the penal sum of One Hundred ($100.00) Dollars, the cost of said action in the amount of Twenty Dollars and ninety-five cents ($20.95), and was sentenced to the Indiana State Penal Farm for a term of one year, and a recommendation was made by said Court to the Commissioner of Motor Vehicles that the privileges of this petitioner, the defendant therein, to operate a motor vehicle be suspended for a period of ten years from and after said date

'6. That pursuant to the judgment of the Fulton Circuit Court in said cause, the petitioner made his fine to the state of Indiana in the penal sum of One Hundred ($100.00) Dollars, fully paid and discharged the cost accruing in said cause, and served a total of eight months and twenty days in the Indiana State Penal Farm in full discharge of the sentence of imprisonment imposed by said courts; and that the Commissioner of Motor Vehicles in compliance with the recommendation of said court, suspended the license privileges of the petitioner to operate a motor vehicle on the highways of the State of Indiana for a period of ten years beginning on the ___ day of June, 1958.'

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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4 cases
  • Twyman v. State
    • United States
    • Indiana Appellate Court
    • 18 Agosto 1983
    ... ... No. 2-183A3 ... Court of Appeals of Indiana, ... First District ... appeared in the Criminal Court of Marion County, Division Two, and pleaded not guilty. At no ... State ex rel ... Dean v. Tipton Circuit Court, (1962) 242 Ind. 42, 181 N.E.2d 230; State ex rel. Gilbert v. Circuit Court of Koscuisko County, (1960) 241 ... ...
  • Twyman v. State
    • United States
    • Indiana Supreme Court
    • 10 Febrero 1984
    ... ... No. 284S48 (2-183A3) ... Supreme Court of Indiana ... Feb. 10, 1984 ... Page 706 ... (For reference, see State ex rel. Hirt v. Marion Superior Court, (1983) Ind., 451 ... appeared in the Criminal Court of Marion County, Division Two, and pleaded not guilty. At no ... State ex rel. Dean v. Tipton Circuit Court, (1962) 242 Ind. 642, 181 N.E.2d 230; e ex rel. Gilbert v. Circuit Court of Koscuisko County, (1960) 241 ... ...
  • City of Marion v. Antrobus
    • United States
    • Indiana Appellate Court
    • 2 Mayo 1983
    ... ... No. 2-582A143 ... Court of Appeals of Indiana, ... Second District ... appealed the Board's decision to the Grant County Superior Court 2 on the basis that the Board ... See e.g., Indiana State Personnel Board v. Parkman, (1969) 252 Ind. 44, ... See, e.g., State ex rel. Johnson v. Reeves, (1955) 234 Ind. 225, 125 ... State ex rel. Wilson v. Howard Circuit Court, (1957) 237 Ind. 263, 145 N.E.2d 4; Farley ... See, e.g., State ex rel. Gilbert v. Kosciusko Circuit Court, (1960) 241 Ind. 122, ... ...
  • Garcia v. Slabaugh
    • United States
    • Indiana Appellate Court
    • 28 Marzo 1974
    ... ... Whitney SLABAUGH, Prosecutor of Elkhart County, et al., ... Appellees(Defendants Below) ... No. 3--973 A 117 ... Court of Appeals of Indiana, Third District ... March ... has not been suspended by the State of Ohio.) ...         The defendant ... In State ex rel. Gilbert v. Circuit Court of Kosciusko County ... ...

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