State ex rel. Grile v. Hughes

• Decision Date: 28 November 1967
• Docket Number: No. 767,767
• Citation: 231 N.E.2d 138,249 Ind. 173
• Parties: The STATE of Indiana on the relation of Lester L. GRILE, Superintendent of Fort Wayne Community Schools, and All Principals employed by Fort Wayne Community Schools, an indiana consolidated public school corporation, Relators, v. W. O. HUGHES, Judge of Allen Circuit Court, Allen County, Indiana, Respondent. * S 55.
• Court: Indiana Supreme Court

Page 138

231 N.E.2d 138

249 Ind. 173

The STATE of Indiana on the relation of Lester L. GRILE Superintendent of Fort Wayne Community Schools, and All Principals employed by Fort Wayne Community Schools, an indiana consolidated public school corporation, Relators, v. W. O. HUGHES, Judge of Allen Circuit Court, Allen County Indiana, Respondent. ^*

No. 767 S 55.

Supreme Court of Indiana.

Nov. 28, 1967.

Clifford E. Simon, Jr., Shoaff, Keegan & Baird, Fort Wayne, for relators.

Fred R. Tourkow, Fort Wayne, for respondent.

MOTE, Judge.

On July 31, 1967, Relators filed in the Clerk's Office their Verified Petition for Writ of Mandate. In pursuance of a rule of law, the Clerk notified Respondent of such filing and of the opportunity, within twenty (20) days, to file an answer, response or objection to the proceeding, with brief in support thereof.

Said Respondent, in due season, filed with this Court his response and objections, with a brief in support.

Some time prior to the filing of their Petition in the Clerk's Office, Relators offered for filing directly with the Court, after notice to Respondent, their said Petition seeking the issuance of a temporary writ, which, after informal hearing, was denied.

The record herein indicates that on May 25, 1967, Barbara J. Bonfield, as President of the Fort Wayne Teachers Association, an unincorporated association for the Officers and Members thereof, filed a complaint for Restraining Order and Injunction in Respondent's court against the Relators herein, as defendants therein, and to which complaint and cause of action Relators made certain appearances and filed various pleas, motions and demurrers and upon which Respondent, from time to time, as Judge of said court, made his rulings and decisions, to which Relators herein duly excepted.

Thereafter, on June 8, 1967, June 9, 1967 and June 29, 1967, hearings were had on the granting of a temporary injunction against the Relators herein, although no summons to them had ever been issued and returned, nor did they take any personal part in the proceedings save by special appearance, filing a plea in abatement. At the conclusion of the hearings, a temporary injunction against these Relators was issued.

After the issuance of the temporary injunction, and at a time when there was pending in Respondent's court an Information for Contempt against Relators and a Rule to Show Cause why these Relators should not be found in contempt of court for the violation of said temporary injunction, Relators filed their Motion for Change of Venue from Respondent's court, predicated upon a finding at the conclusion of the hearings on June 8, 9 and 29, 1967 on the question of the issuance of a temporary injunction, as follows:

'* * * which action was taken in violation of the temporary restraining order heretofore issued by this Court in this Cause,'.

On July 18, 1967, Relators filed their Petion and Request for Disqualification of the Respondent Judge, stating, among other reasons, prejudice and prejudgment on the contempt proceedings.

On July 20, 1967, Respondent held a hearing on the said Motion for Change of Judge and the said Petition for Request for Disqualification, after which he granted said Motion for Change of Judge for the purpose of subsequent hearing on the permanent injunction, but retained jurisdiction of the Information for Contempt. He also granted Relators' Motion to Strike, but denied Relators' Petition and Request for Disqualification of Judge. Respondent retained jurisdiction of the Information for Contempt.

While we have but briefly set out the record in the trial court, it is believed that it is sufficient to state the questions presented from Relators' point of view.

In his Response and Brief in support, Respondent asserts that 'a mere prior decision of law against a party does not show a disqualifying bias of the judge', citing Hays v. Morgan (1882) 87 Ind. 231, and he properly argues, we think, that to allow a Writ of Mandate to issue to a lower court to compel a judge to disqualify himself, regardless of the error, would be to invite an avalanche of such proceedings.

It often has been held that mandamus, an extraordinary remady in equity, will not lie where there is an adequate remedy at law. State ex rel Socony Mobil Oil Co. v. Delaware Circuit Court (1964) 245 Ind. 154, 196 N.E.2d 752. Furthermore, the Writ of Mandate or Mandamus is not to be used as a substitute for appeal procedure. State ex rel Allison v. Criminal Court (1958) 238 Ind. 190, 149 N.E.2d 114; State ex rel Rans v....