State ex rel. Mcguirk v. Davisson

• Decision Date: 08 July 1925
• Docket Number: No. 24949.,24949.
• Citation: 148 N.E. 401,196 Ind. 451
• Parties: STATE ex rel. McGUIRK v. DAVISSON, Special Judge.
• Court: Indiana Supreme Court

196 Ind. 451

148 N.E. 401

STATE ex rel. McGUIRK

v.DAVISSON, Special Judge.

No. 24949.

Supreme Court of Indiana.

July 8, 1925.

Application for writ of prohibition by the State of Indiana, on relation of William B. McGuirk, against Everett O. Davisson as Special Judge. Writ issued.

Chas. E. Henderson, of Indianapolis, and C. C. Whitlock, of Terre Haute, for appellant.

Miller & Englehart, of Brazil, Ind., and Walker & Johnson, of Terre Haute, for appellee.

PER CURIAM.

Relator filed his petition for a writ of prohibition forbidding the respondent to proceed, as special judge of the Clay circuit court, in the matter of hearing evidence and taking action upon an information filed in the office of the clerk of said court, charging that this relator, by refusing to surrender the office of township trustee in obedience to a judgment of that court from which relator had taken an appeal, had rendered himself liable to attachment and imprisonment. The petition alleges, in substance, that relator was in possession of the office of trustee of Harrison township, Vigo county, state of Indiana, when an action against him in the nature of quo warranto was commenced in the name of the state of Indiana on relation of William F. Gottschalk, to try the title to said office, the complaint in that action alleging that he was in wrongful possession thereof and that said Gottschalk was entitled to the office; that the venue of said action of quo warranto was changed to the Clay circuit court, and Everett O. Davisson, respondent in the case at bar, was appointed and qualified as special judge, and acted as such in the trial of said cause and entered a final judgment therein to the effect that said Gottschalk was and since the 2d of January, 1925, had been, “the duly appointed and qualified township trustee” of said township and entitled to the office and everything thereunto belonging, and that the defendant therein (relator in the case at bar) thereby was ousted from said office, its salary and emoluments, and was commanded to deliver to Gottschalk possession of the same, and that Gottschalk recover from said defendant therein (relator herein) $500 damages and his costs; that this relator, the defendant therein, filed a motion for a new trial, specifying in writing 13 alleged statutory reasons why such new trial ought to be granted; that his motion was overruled, and relator, as such defendant, on that day prayed an appeal, which was granted on filing an appeal bond; that such a bond in the penal sum of $1,500 was thereupon filed, conditioned well and truly to prosecute the appeal to effect, and in case it be affirmed to deliver possession of said office to Gottschalk and pay all damages sustained by him, as well as to pay the judgment affirmed, with costs, and the bond and sureties were approved by the trial court; that at the time said motion was overruled, 60 days in which to file a bill of exceptions containing the evidence was granted, and at the time the petition for a writ of prohibition was filed, the reporter who took down in shorthand the evidence in the original action of quo warranto was engaged in transcribing it in longhand, and that relator was diligently preparing to and intended to perfect a term appeal to the Supreme Court in said cause; that two weeks after the time when said motion for a new trial was overruled and said appeal bond was filed and approved, said Gottschalk, as relator, filed an information in the office of the clerk of the Clay circuit court, setting out the terms of said judgment and the fact that such appeal bond had been given, conditioned to prosecute the appeal to effect and to abide by and pay any judgment and costs which might be rendered or affirmed against the defendant therein (this relator), but averring that said judgment had never been reversed, vacated, or set aside, and that it remained in full force and effect, and that said defendant (this relator) continued unlawfully and wrongfully to usurp said office of township trustee and refused to deliver the office or any of the property of the township to Gottschalk.

Said petition of relator in the case at bar further alleges that thereupon the respondent Davisson, assuming to act as special judge in the said cause by virtue of his appointment and qualification in the cause in which he had previously entered judgment, as stated above, entered an order which recited the filing of the information by Gottschalk and its principal averments, and commandedthe defendant (relator herein) to appear before him in the Clay circuit court five days later, and show cause why he should not be attached and imprisoned for failing to comply with and obey said judgment ousting him from the office of township trustee; that no change from the judge of the Clay circuit court had been taken since the information was filed, and respondent has not been appointed as judge pro tempore or as special judge, except only to try the action of quo warranto in which he had rendered final judgment some weeks before the pending information was filed; that immediately upon the filing of such information, and without notice to this relator, who was made the defendant thereto, the respondent Davisson issued, over his signature as special judge, certified by the clerk under the seal of the Clay circuit court, what purported be an order of said court that the defendant therein (this relator) should appear at a time named and “show cause, if any he may have, why he should not be attached and imprisoned for failure to comply with and obey the aforesaid order and judgment of said court ousting him from the office of trustee.”

The respondent has demurred to said complaint for lack of facts sufficient to constitute a cause of action, asserting: (1) That the judgment ousting relator from the office of township trustee was “self-executing,” and therefore took effect without the issue of process or writ of ouster, and without any proceedings which were or could be stayed by filing an appeal bond and obtaining a supersedeas; and (2) that the filing of the information was incident to and in aid of the enforcement of the judgment previously rendered, being a “necessary step to enforce and carry into effect the judgment of ouster,” and therefore was within the authority of the special judge who presided at the rendition of that judgment.

It may be remarked in passing that these positions taken by counsel on the two subjects are inconsistent with each other. If the judgment of ouster was self-executing and fully took effect without writ or process for that purpose, it is not easy to perceive how the filing of an information and action thereon by the court could be a necessary step to put it in effect.

[1] The question first presented for decision is whether or not an appeal bond duly filed and approved in taking a term appeal from a judgment in quo warranto operated as a supersedeas, and stayed further proceedings in the trial court...