State ex rel. Kostas v. Johnson, 28249.

• Citation: 224 Ind. 540,69 N.E.2d 592
• Decision Date: 18 November 1946
• Docket Number: No. 28249.,28249.
• Parties: STATE ex rel. KOSTAS v. JOHNSON, Judge of Superior Court of Marion County.
• Court: Indiana Supreme Court

224 Ind. 540
69 N.E.2d 592

STATE ex rel. KOSTAS
v.
JOHNSON, Judge of Superior Court of Marion County.

No. 28249.

Supreme Court of Indiana.

Nov. 18, 1946.

Original proceeding in prohibition by the State of Indiana on the relation of Andrew Kostas against Emsley W. Johnson, Jr., as Judge of Superior Court of Marion County, Room 3, for a writ prohibiting respondent from proceeding further in an action pending in his court wherein relator was plaintiff.

Writ denied.

[69 N.E.2d 592]

Charles W. Appleman, Louis B. Ewbank and Richard L. Ewbank, all of Indianapolis, for appellant.

Herman N. Kothe and Grier M. Shotwill, both of Indianapolis, for appellee.

YOUNG, Judge.

On and prior to May 31, 1946, there was pending in Room 3 of the Superior Court of Marion County, Indiana, an action wherein relator was plaintiff. A partnership between plaintiff and defendants was alleged and the plaintiff sought an accounting and a receiver for the partnership property. The case was tried without a jury and the evidence was concluded on May 31, 1946, and taken under advisement. We know judicially that the May term of the Superior Court of Marion County ended on June 1, and that the June term of said court ended on June 29, and that said court was in vacation from said date until September 3, 1946. It does not appear that during the vacation of said court any special, adjourned or continued term of said court had been provided, in the absence of which the court and the judge were without power to determine the issue held under advisement.

[69 N.E.2d 593]

Glaser v. State, 1932, 204 Ind. 59, 183 N.E. 33, 35;State v. Hindman, 1902, 159 Ind. 586, 589, 590, 65 N.E. 911;State v. Bridges, 1946, Ind.App., 64 N.E.2d 411, 414;Isaacs, Trustee, v. Fletcher American Nat. Bank, 1934, 98 Ind.App. 111, 120, 185 N.E. 154, 157.

It appears from respondent's verified answer, without contradiction in relator's reply, that during the 24 judicial days intervening between May 31, and June 29, date of adjournment for summer vacation, the docket of said court was congested with other matters of equal importance and right to priority, and that during said period of time rulings on pleadings in 56 cases were made and entered, six cases were tried and taken under advisement, support hearings and hearings upon other domestic matters, not including divorces, were heard in 109 cases, and 154 cases were tried and disposed of, making a total of 324 cases in which the court acted during the period between May 31, and June 29, 1946.

The court had not decided relator's case when the June term ended and summer vacation intervened. During vacation the judge of said court did not file his determination of said case in writing with the papers in the case, and on August 30, 1946, because of respondent's failure to decide said case within 90 days after taking same under advisement, relator filed in the office of the clerk of said court his application that the submission of said cause be withdrawn from the judge who tried the same, and that the judge be disqualified to hear or determine same, and that a special judge be appointed to take jurisdiction thereof. A copy of said application to terminate the jurisdiction of the judge who heard the evidence in said cause was left with the wife of said judge at their home and there is no claim that his attention was not called to some promptly.

Notwithstanding the filing of said application, respondent continued jurisdiction over said cause and announced that he would decide and determine same.

Relator thereupon presented to, and later filed in, this court his petition for a writ prohibiting respondent from proceeding further in said matter. A temporary writ was not issued, but respondent was ordered to file answer and briefs, which has been done.

The statute, upon which relator relies, reads as follows: ‘Upon trials of questions of fact by the court, it shall not be necessary for the court to state its finding, except generally for the plaintiff or defendant, unless one of the parties requests it, with a view of excepting to the decision of the court upon the questions of law involved in the trial; in which case, the court shall first state the facts in writing, and then the conclusions of law upon them, and judgment shall be entered accordingly. And whenever any issue of law or fact is submitted to the court for trial, and the judge shall take the same under advisement, the judge shall not, except in case of severe illness of himself or family, hold the same under advisement for more than sixty (60) days; and, if the court wherein said issues arose be not then in session, he shall file his determination therein, in writing, with the papers in the case: Provided, That if the judge shall fail to determine any issue of law or fact which has been taken under advisement within ninety (90) days after having taken the same under advisement, upon written application of any of the parties to the action, or their attorneys of record, duly filed in the office of the clerk of said court and called to the attention of said judge before the announcement of the decision of the issue in question, the submission of said issue shall thereupon be withdrawn and the judge before whom said cause is pending shall be disqualified to hear or determine any of the issues in said cause, and a...