State ex rel. Hasch v. Johnson Circuit Court of Johnson County

Decision Date30 June 1955
Docket NumberNo. 29267,29267
Citation127 N.E.2d 600,234 Ind. 429
PartiesSTATE of Indiana on the Relation of James HASCH, Relator, v. The JOHNSON CIRCUIT COURT OF JOHNSON COUNTY, Indiana, Honorable Harold G. Barger, Special Judge of the Johnson Circuit Court of Johnson County, Indiana, Respondents.
CourtIndiana Supreme Court

Honorable Harold G. Barger, Special Judge of the

Johnson Circuit Court of Johnson County,

Indiana, Respondents.

No. 29267.

Supreme Court of Indiana.

June 30, 1955.

Branigin & Branigin and Thurman DeMoss, Franklin, Warren M. Brown and Emerson J., Brunner, Shelbyville, for appellant.

Harold G. Barger, pro se.

ACHOR, Judge.

Relator has filed a verified petition for writ of prohibition, pursuant to which this court has issued a temporary writ prohibiting the respondent from exercising further jurisdiction in the case and to show cause why the writ should not be made permanent.

Following are the essential facts before us: An affidavit was filed against relator on February 18, 1954, charging him with the offense of assault with the intent to commit a felony. Thereafter successive motions to quash were filed and sustained until a third amended affidavit was filed. Relator was thereafter arraigned, entered a plea of not guilty, and was released on bond in the penal sum of $5,000. Subsequently a trial date was set and thereafter relator filed his verified motion for change of judge which was granted, and respondent, Honorable Harold G. Barger, was duly selected as special judge and assumed jurisdiction therein. Said cause was numbered 6151 in the Johnson Circuit Court.

On December 31, 1954 relator filed his motion for discharge under Acts 1905, ch. 169, § 220, p. 584, being § 9-1403, Burns' 1942 Replacement. Said section of the statute is as follows:

'No person shall be held by recognizance to answer an indictment or affidavit without trial for a period embracing more than three (3) terms of court, not including the term at which a recognizance was first taken thereon, if taken in term time; but he shall be discharged unless a continuance ance be had upon his own motion, or the delay be caused by his act, or there be not sufficient time to try him at such third term; and, in the latter case, if he be not brought to trial at such third term, he shall be discharged, except as provided in the next section.'

Thereafter on the 6th day of January 1955, the state, by the prosecuting attorney, filed its motion to dismiss the action without prejudice. Evidence was heard on the petition to discharge and argument was had concurrently on both the petition to discharge and the motion to dismiss.

Subsequently, relator filed a motion requesting the court to rule upon his motion for discharge prior to any action on the state's motion for dismissal. This motion was overruled and the court sustained the state's motion to dismiss on January 24, 1955.

On February 15, 1955, the state filed in the same court another affidavit entered as Cause No. 6327, charging relator with the identical offense charged in the prior affidavit in Cause No. 6151. In the second case the regular judge of the Johnson Circuit Court disqualified himself, and on February 19, 1955, respondent Honorable Harold G. Barger was, by agreement of the parties, again selected as special judge 'to try and determine said cause.' No action has been taken in said Cause No. 6327 by the special judge from the date of his appointment to the filing of this petition on March 8, 1955.

The first question which this court must determine is whether or not, under the circumstances presented, it has jurisdiction to issue the writ of prohibition heretofore temporarily issued.

The court has only such original jurisdiction as the legislature has or may hereafter confer upon it. State ex rel. Beaman v. Circuit Court Pike Co.; Gibson Co., 1951, 229 Ind. 190, 193, 96 N.E.2d 671. The legislature has provided that this court may issue writs of prohibition to circuit courts to confine them to their lawful jurisdiction. Acts 1933, ch. 102, § 1, p. 688, being § 3-2201, Burns' 1946 Repl. This court has also stated:

"'A court that proceeds in the trial of a cause against an express prohibition of a statute is exceeding its jurisdiction, and may be prevented by prohibition from this court." State ex rel. Kunkel v. LaPorte Circuit Court, supra [1936], 209 Ind. , p. 694, 200 N.E. , 618, quoting Hayne v. Justice's Court, 1889, 82 Cal. 284, 285, 23 P. 125 and citing Culver Contracting Corp. v. Humphrey, 1935, 268 N.Y. 26, 196 N.E. 627.' State ex rel. Poindexter v. Reeves, 1952, 230 Ind. 645, 661, 104 N.E.2d 735, 742.

It is contended that the following cases support the issuance of a writ under the circumstances before us. In the case of Zehrlaut v. State, 1951, 230 Ind. 175, 180-181, 102 N.E.2d 203, the court had before it a similar motion to dismiss based upon the same statute, § 9-1403. In that case this court held correctly that under the facts before it the trial court erred in overruling the motion to discharge. However that case and this are not analogous. In that case the issue was presented as an assigned error in an ordinary appeal on the merits, whereas we are here concerned with an original action which denies the jurisdiction of the trial court to entertain the second cause of action.

It is relator's contention that the trial court, when confronted with the petition for discharge in the original case No. 6151 had no authority to dismiss the case without first ruling upon the petition. That consequently for the purpose of this proceedings the case is still pending, and that it therefore follows that by reason of § 3-2201, supra, the respondent had no jurisdiction in the second action. For that reason it is contended that the case of State ex rel. Poindexter v. Reeves, supra, is controlling of the question before us. However, the above contentions are all based upon the premise that the court was without jurisdiction in the original case No. 6151 to dismiss the same without first ruling upon the motion to discharge. Admittedly, there is no express statutory procedure prescribed for invoking the statute, § 9-1403, therefore if such a requirement exists, it must be grounded in the purpose and character of the statute rather than its expres terms. What is its purpose? As stated in the case of Zehrlaut v. State, supra [230 Ind. 175, 102 N.E. 205]:

'The statute is a practical implementation of the Indiana Constitution [Art. 1, § 12] providing as follows: 'All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.' (My italics).'

Consistent with the character and purpose of the statute, § 9-1403, it would seem necessarily to follow that after filing a petition to invoke a statute it became the mandatory duty of the court to act upon it expeditiously. See ...

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