State ex rel. Kostas v. Johnson
| Decision Date | 18 November 1946 |
| Docket Number | 28249. |
| Citation | 69 N.E.2d 592,224 Ind. 540 |
| Parties | STATE ex rel. KOSTAS v. JOHNSON, Judge of Superior Court of Marion County. |
| Court | Indiana Supreme Court |
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.
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.
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: (§ 2-2102, Burns' 1946 Replacement.)
It is contended by relator that by virtue of this statute respondent has been without jurisdiction in the case referred to since August 30, 1946, and should be prohibited from proceeding further therein.
It is contended by respondent, among other things, that the statute is unconstitutional and void as a legislative interference with judicial functions insofar as it attempts to fix the time within which a court shall rule upon an issue submitted to it. This statute has been before this court and the Appellate Court in its different stages a number of times, but its constitutionality has never been presented or passed on, although in one case this court took occasion to express doubt concerning the constitutional validity of the proviso depriving the court of further jurisdiction of any issue taken and held under advisement for 90 days or more. State ex rel. Harlan v. Municipal Court, 1942, 221 Ind. 12, 14, 46 N.E.2d 198.
It is also of interest and significant, we think, to note that never in the several cases involving this statute which have been before this court and the Appellate Court has been statute been given literal effect. In Jones v. Swift et al., Executors, 1883, 94 Ind. 516, and in Smith v. Uhler, 1884, 99 Ind. 140, 142, the language forbidding the court to hold any issue under advisement for more than 60 days was held to be directory only and judgments rendered after the prescribed period were held to be valid. In State v. Wirt, 1931, 203 Ind. 121, 130, 132, 177 N.E. 441, an application to withdraw submission was made, but the proviso clause was held to create only a procedural privilege which could be, and was held to have been, waived in that case. In State ex rel. Harlan v. Municipal Court, supra, it was held that after a judge had heard the evidence in a case, and later held a motion for a new trial under advisement for more than 90 days, he was still entitled and required to rule upon the motion for a new trial upon the ground that the proviso in the statute, insofar as it would require appointment of a special judge to pass upon a motion for a new trial was superseded by Rule 1-9 of this court requiring that motions for a new trial shall be ruled on by the judge who had heard the evidence.
The constitutionality of those portions of the statute which require the judge to act within a named period of time is now before us and decision involves the application of old and well established principles. The separation and independence of the executive, legislative and judicial branches of government are fundamental in the scheme of government which has uniformly prevailed in this country. Provision therefor is found in the Federal Constitution and in the constitutions of substantially all of the states.
Section 1 of Art. 3 of the Constitution of Indiana reads as follows: 'The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.'
Of this section of the Constitution, Chief Justice Elliott said in State ex rel. Hovey v. Noble, 1889, 118 Ind. 350, at page 354, 21 N.E. 244, 246, 4 L.R.A. 101, 10 Am.St.Rep. 143:
Section 1 of Art. 7 says that, 'The judicial power of the State shall be vested in a Supreme Court, in Circuit Courts and such other courts as the General Assembly may establish.'
Of this section, Judge Elliott said, in State ex rel. Hovey v. Noble, supra, 118 Ind. at page 352, 21 N.E. at page 245, 4 L.R.A. 101, 10 Am.St.Rep. 143: '* * * The effect of this provision is to vest in the courts the whole element of sovereignty, known as the judicial, established by the constitution, and the laws enacted under it, except in a few instances, where powers of a judicial nature are expressly and specifically lodged elsewhere. * * *.'
In the same case, 118 Ind. at page...
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