State ex rel. Neal v. Superior Court of Marion Cnty.

• Decision Date: 12 February 1931
• Docket Number: No. 25984.,25984.
• Citation: 174 N.E. 732,202 Ind. 456
• Parties: STATE ex rel. NEAL v. SUPERIOR COURT OF MARION COUNTY et al.
• Court: Indiana Supreme Court

202 Ind. 456

174 N.E. 732

STATE ex rel. NEAL

v.SUPERIOR COURT OF MARION COUNTY et al.

No. 25984.

Supreme Court of Indiana.

Feb. 12, 1931.

Original proceedings by the State of Indiana, on the relation of Banus E. Neal, for a writ prohibiting the Superior Court of Marion County, Room 2, and Joseph R. Williams, judge thereof, from exercising any jurisdiction in case entitled Banus E. Neal against the Knox Consolidated Coal Company and the receivership appointed thereunder.

Temporary writ of prohibition dissolved, and writ of prohibition denied.Ewbank & Dowden, of Indianapolis, for appellant.

Cox & Adams, of Indianapolis, for appellees.

MARTIN, J.

On petition of the relator, Banus E. Neal, a temporary writ of prohibition was issued January 7, 1931, against the superior court of Marion county, room 2, and Joseph R. Williams, the judge thereof, prohibiting said court from exercising any jurisdiction in cause No. A-44005, entitled Banus E. Neal v. Knox Consolidated Coal Company, and the receivership thereunder.

The following facts appear from the petition for the writ and from the return of the respondent: Banus E. Neal on April 16, 1928, filed an action in room 2 of the superior court of Marion county against the Knox Consolidated Coal Company. He sued as a stockholder and bond holder alleging that the company had the capacity to produce 13,000 tons of coal per day from its mines in Knox county, but that the coal mining industry was unstable and depressed and the mines of the company had been closed for a year; that the company was doing business buying and selling coal with an office at Indianapolis; that it owned 6,500 acres of coal and coal rights in Knox county, together with valuable buildings and equipment, but that it had large expenditures to meet in the way of taxes, insurance, repairs, and maintenance of its mining property as well as interest charges on its outstanding unmatured mortgage bonds in the sum of $3,500,000; and that the company was in danger of becoming insolvent. The relief prayed for was the appointment of a receiver for the company's properties. The company was served with notice, filed an answer in general denial, and the court, after hearing the evidence, found that the facts alleged were true and appointed a receiver for the company.

The said cause thereafter remained on the docket of superior court, room 2, for the purpose of the administration of the trust of such receivership until December 20, 1930, when Banus E. Neal filed therein an affidavit for a change of venue on the ground “that he cannot have a fair and impartial trial thereof before the Hon. Linn D. Hay, Judge of the Marion Superior Court Room 2 for the following reason: on account of the bias and prejudice of said judge against this plaintiff.” Thereupon on December 23, 1930, the following order was made by the court:

“Comes now the plaintiff Banus E. Neal, in person and on his affidavit now filed, which said affidavit is in words and figures as follows: (here insert) moves the court for a change of venue from the judge of this court, and the judge being sufficiently advised in the premises, finds that reasons exist for a change of venue from the judge of this court: and now upon the courts own motion, this cause is ordered transferred from the Superior Court of Marion County Room two, to the Marion Circuit Court, there to be re-docketed and disposed of as if originally filed with said Circuit Court. It is therefore ordered. ***

“[Signed] Linn D. Hay, Judge.”

All the papers and minutes in the cause were transferred to the Marion circuit court and the cause was docketed therein. On January 2 the receiver filed a current report therein.

On January 3, 1931, a petition was filed in room 2 of the superior court by a stockholder and bondholder of the Knox Consolidated Coal Company (who had theretofore unsuccessfully sought to intervene in said cause in said court), in which he alleged that the action of that court in transferring the cause to the circuit court “was not within any of the powers conferred upon the judges of the Superior Courts by statute and said action of the Hon. Linn D. Hay was null and void,” and prayed for an order setting aside and vacating the order which purported to transfer the case to the circuit court. Thereupon the superior court, room 2, entered an order vacating and setting aside the order of transfer, and further ordered:

“That the clerk of the Marion Circuit Court be and he is hereby directed to return forthwith unto this court all the pleadings, papers, and docket entries made, filed and entered in said cause.” *** (signed) “Joseph R. Williams, Judge of Marion Superior Court, Room 2.”

[1][2] This court knows as a matter of law that January 3, 1931, was within the December, 1930, term of the Marion superior court, room 2. Acts 1871, c. 22, p. 48, note to section 1681, Burns' Ann. St. 1926. It also knows the following (which may aid in an understanding of the facts, but which is in no wise considered in determining the questions involved), viz.: That at the general election in November, 1930, a judge of the superior court, room 2, of Marion county was elected, section 1527, Burns' Ann. St. 1926, and that the superior judges elected at that time took office January 1, 1931, section 1, c. 10, Acts 1929, § 1811, Burns' Ann. St. 1929 Supp.

[3][4] A court has full and complete control of the record of its proceedings during the term at which the proceedings are had, and during such term, for good cause, may correct, modify, or vacate any of its judgments or orders made therein. Burnside v. Ennis (1873) 43 Ind. 411;Ryon, Receiver v. Thomas (1885) 104 Ind. 59, 3 N. E. 653;Livingston v....