State ex rel. Harlan v. Mun. Court of Marion Cnty., 27816.

• Court: Supreme Court of Indiana
• Citation: 46 N.E.2d 198,221 Ind. 12
• Docket Number: No. 27816.,27816.
• Parties: STATE ex rel. HARLAN v. MUNICIPAL COURT OF MARION COUNTY et al.
• Decision Date: 27 January 1943

221 Ind. 12

46 N.E.2d 198

STATE ex rel. HARLAN

v.MUNICIPAL COURT OF MARION COUNTY et al.

No. 27816.

Supreme Court of Indiana.

Jan. 27, 1943.

Original prohibition proceeding by the State, on the relation of Myron S. Harlan, against the Municipal Court of Marion County, Room No. 2, Ind., Honorable Lewis E. Marine, as judge pro tem of the Municipal Court of Marion County, and the Roy Wilmeth Company.Donald R. French, of Indianapolis, for relator.

Otto W. Cox, of Indianapolis, for respondent.

RICHMAN, Chief Justice.

This is an original action in which relator by petition verified by his attorney seeks a writ of prohibition against respondent Lewis E. Marine as judge pro tempore. Both respondents have made returns under oath to the temporary writ heretofore granted. A verified reply has been filed by relator. It contains allegations of some facts but consists principally of argument. By these pleadings is disclosed a controversy between relator's attorney and the respondent judge which ought not to have required action by this court. Certain undisputed facts sufficiently appear.

Respondent Marine presided as judge pro tempore in the Municipal Court of Marion County, Room No. 2, in an action numbered 85748 wherein respondent Roy Wilmeth Company was plaintiff and relator was defendant. At the conclusion of a trial, September 12, 1941, before a jury the judge directed a verdict for the plaintiff and judgment was immediately entered. Relator seasonably filed a motion for new trial. After argument and submission of memoranda the judge told relator's attorney that the motion would be overruled but no ruling thereon was in fact shown either by judge's minutes or order book entry until December 28, 1942, the day on which relator's petition was filed in this court. December 9, 1942, relator filed an application in the trial court under the proviso in § 2-2102, Burns' 1933, § 360, Baldwin's 1934, alleging that the judge pro tem had had the motion for a new trial under advisement for more than ninety days and seeking withdrawal thereof and appointment of a special judge to pass upon the motion. He contends that thereby the judge pro tem lost jurisdiction.

Under the principles discussed in State ex rel. Youngblood v. Warrick Circuit Court, 1935, 208 Ind. 594, 196 N.E. 254, we doubt the constitutional validity of this proviso. Waiving this question, which it is unnecessary to decide, the proviso in so far as it would permit appointment of a special...