State ex rel. Kist v. Ball
| Decision Date | 25 September 1945 |
| Docket Number | 28108. |
| Citation | 62 N.E.2d 621,223 Ind. 512 |
| Parties | STATE ex rel. KIST v. BALL, Special Judge, et al. |
| Court | Indiana Supreme Court |
David A. Myers, of Greensburg, Robert C. Oliver, of Winchester, and James P. Murphy, of Fort Wayne, for relator.
Frank W. Gordon, of Bluffton, George H. Koons, of Muncie, and Michael L. Fansler, or Indianapolis, for respondent.
The purpose of the action which will be affected if a writ of mandate or prohibition is issued herein was to settle a partnership between relator herein and Morton S. Hawkins. The appointment of a receiver pendente lite in that case for partnership property was affirmed in Kist v. Coughlin Trustee, 1936, 210 Ind. 622, 1 N.E.2d 602, 4 N.E.2d 533. Thereafter the case was tried and final judgment and decree was entered. The partnership was established and the rights of the partners were determined, the appointment of the receiver was made permanent, an accounting was had and the receiver was directed to marshal and sell the partnership assets, and fully and finally wind up the affairs of the partnership, and distribute the proceeds as directed in said decree. Relator appealed and the judgment of the court as to relator and the members of his family was affirmed by this court, but was reversed as to certain parties who were before the court only in summary proceedings looking to the protection of the receivership estate. We held them not to be parties to the main action, but ordered a new trial of the summary proceedings. Kist v. Coughlin, Trustee, 1944, 222 Ind. 639, 57 N.E.2d 199 and 586.
The final judgment referred to was made and entered by a special judge, who had been duly and properly appointed. After the mandate of this court was certified back to the trial court the special judge continued to act in connection with the administration of the receivership estate.
Relator filed objections to said special judge further sitting in said cause and requested a change of venue from said special judge.
Relator's objections and motion for a change of venue from the special judge were overruled, and relator brought this original action in this court asking that the special judge be prohibited by this court from further acting in said cause and that he be mandated to grant a change of judge therein and to expunge from the record certain action of said special judge taken in the administration of the receivership estate after final judgment in the main action.
It should be specially noted that final judgment had been rendered and affirmed in the main action, and only administration of the receivership remained. The objections to the special judge were not limited to any particular issue or issues arising in the administration of the receivership matter but were objections that he continue at all in the administration of the receivership.
Relator bases his request for a writ of prohibition on two propositions. The first is that the special judge's jurisdiction terminated with the entry of the final judgment in the main case. His second proposition is predicated upon Chapter 195 of the Acts of the Indiana Legislature of 1945. That act provides that: 'In any civil action or statutory proceeding, if any judgment * * * be set aside by the judgment of another court of competent jurisdiction, then the judge whose * * * judgment is set aside shall be deemed disqualified to act further in such cause upon objection of any party to such action or proceeding * * *, and the party so objecting shall be entitled to a change of venue from such judge, notwithstanding any change of venue theretofore taken. * * *.'
Relator has cited no authority, and we have found none, on his first point, i. e. that a general change of venue from a judge in a case where a receiver is asked does not take with it the entire action and all matters to be determined therein. The rule seems to be otherwise.
In State ex rel. Youngblood v. Warrick Circuit Court, 1935, 208 Ind. 594, 196 N.E. 254, the jurisdiction of special judges is considered and the cases and applicable constitutional provisions are analyzed. Beginning at the bottom of page 603 and continuing at the top of page 604 of 208 Ind., at page 258 of 196 N.E., this court's conclusion is expressed in the following language:
'From the language of these cases, and others which might be referred to, it is clear that a special judge of the circuit court is a constitutional circuit court judge for the purposes of the case in which he was appointed, with all of the power and jurisdiction of a regular judge, and that after he has been appointed his power and jurisdiction flow from the Constitution, and not from legislative enactment.' (Our italics.)
In Perkins et al. v. Hayward et al., 1890, 124 Ind. 445, 447, 24 N.E. 1033, this court said:
'When the regular judge yields the bench, calls in a special judge, and duly appoints him to try a designated cause, the special judge thus appointed acquires full authority over the cause throughout all of its stages.' (Our italics.)
This same language is quoted with approval in Mayer v. Haggerty, 1894, 138 Ind. 628, 635, 38 N.E. 42, and in State ex rel. Youngblood v. Warrick Circuit Court 1935, 208 Ind. 594, 603, 196 N.E. 254. We can see no reason why the holdings of these cases should not apply to receivership cases, and we accordingly hold that when the change was taken in this case the special judge was given jurisdiction not only to determine the issues involved in the main action but to administer the receivership estate when and if the receiver was continued.
In the situation before us we need not decide relator's second proposition or construe Chapter 195 of the Acts of...
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