State ex rel. Kostas v. Johnson

CourtSupreme Court of Indiana
Citation69 N.E.2d 592,224 Ind. 540
Docket Number28249.
PartiesSTATE ex rel. KOSTAS v. JOHNSON, Judge of Superior Court of Marion County.
Decision Date18 November 1946

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.

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 special judge shall be appointed to take jurisdiction thereof under the same rules and regulations prescribed by law in cases where the judge is disqualified for hearing a given cause.' (§ 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: '* * * There is more than a mere theoretical separation, or else words are powerless and constitutions mere empty fulminations. The provisions of the constitution we have quoted, taken in connection with those which prescribe, define, and limit the powers of the other departments of government, remove all doubt, and make it incontrovertibly plain that the courts possess the entire body of the intrinsic judicial power of the state, and that the other departments are prohibited from assuming to exercise any part of that judicial power.'

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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  • State ex rel. Kostas v. Johnson, 28249.
    • United States
    • Indiana Supreme Court of Indiana
    • November 18, 1946
    ...224 Ind. 54069 N.E.2d 592STATE ex rel. KOSTASv.JOHNSON, Judge of Superior Court of Marion County.No. 28249.Supreme Court of Indiana.Nov. 18, 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......

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