State ex rel. Neal v. Hamilton Circuit Court

• Citation: 224 N.E.2d 55,248 Ind. 130
• Decision Date: 13 March 1967
• Docket Number: No. 31001,31001
• Parties: STATE of Indiana on the relation of Jim NEAL and the Noblesville Daily Ledger, a Corporation, Relators, v. The HAMILTON CIRCUIT COURT, Robert W. McNevin, Special Judge of the Hamilton Circuit Court, Respondents.
• Court: Supreme Court of Indiana

Page 55

224 N.E.2d 55

248 Ind. 130

STATE of Indiana on the relation of Jim NEAL and the

Noblesville Daily Ledger, a Corporation, Relators, v. The HAMILTON CIRCUIT COURT, Robert W. McNevin, Special Judge

of the Hamilton Circuit Court, Respondents.

No. 31001.

Supreme Court of Indiana.

March 13, 1967.

[248 Ind. 131] Symmes, Fleming, Ober & Symmes, Indianapolis, Christian, Waltz, White & Klotz, Noblesville, for relators.

Robert McNevin, pro se.

ORIGINAL ACTION

JACKSON, Judge.

This matter comes to this court by way of a verified Petition for Writ of Mandate against the respondents. The petition in pertinent part reads as follows:

'1. That on the 19th day of July, 1965, there was caused to be filed in the office of the Clerk of the Hamilton Circuit Court an action entitled 'State of Indiana, in the relation of The Hamilton County Circuit Court vs. Jim Neal, The Noblesville Daily Ledger, a corporation', which action was captioned as 'Citation for Criminal Contempt and Rule to Show Cause Why They should not be punished for Same,' and in which Relators here were named as Respondents in said action, a certified copy of which Citation is attached hereto and made an exhibit hereto as a part of 'Exhibit A.'

'2. That said Clerk of said Hamilton Circuit Court received the said Citation and placed thereon the file marks of said court and docketed the same on the entry docket of said court as Cause No. C5--099; that thereupon said Clerk pursuant to a Writ for Body Attachment endorsed upon said Citation issued said Writ to the Sheriff of Hamilton County, Indiana, directing and commanding said Sheriff to summon Relators here to appear before the Judge of the Hamilton Circuit Court to answer for a contempt of said Court; that a certified copy of said 'Order for Body Attachment' and the return thereon is attached hereto and made an exhibit hereto as part of Exhibit 'A'.

'3. That on the 21st day of July, 1965, Respondent here, Robert W. McNevin, was duly appointed Special Judge in said action; that on the 22nd day of July, 1965, said Respondent accepted said appointment, qualified and assumed jurisdiction in the said action.

'4. That on the 19th day of August, 1965, there was filed in said action by Relators here a certain pleading titled 'Defendants' Motion to Discharge' and defendants' memorandum and brief in support of said motion; that a certified copy of said motion is attached hereto and made an exhibit hereto as a part of Exhibit A'.

'5. That Relators' said motion presented an issue of law or fact in that it moved the Court to discharge the rule against Relators to show cause why they should not be punished for contempt.

'6. That on the 30th day of October, 1965, Respondent here, Robert W. McNevin, declined to Rule upon said pending motion and purported to withdraw the action from further consideration; that a certified copy of said purported ruling is attached hereto and made an exhibit hereto as a part of Exhibit 'A'.

'7. That on the 15th day of February, 1966, Relators here filed in said action a motion entitled 'Defendants' Motion for Selection of Special Judge', which said motion alleged that Respondent, Robert W. McNevin, as Special Judge, had failed to determine any issue of law or fact presented by said 'Motion to Discharge' filed therein on the 19th day of August, 1965, that more than 180 days had elapsed since said 'Motion to Discharge' had been presented to Respondent for determination, and requesting that submission of the issue in question be withdrawn from the Respondent, that he be disqualified to hear or determine any of the issues in said cause and that a special judge be appointed to take jurisdiction therein under the same rules and regulations prescribed by law where the judge is disqualified for hearing a given cause, all as provided by Rule 1--13 of the Rules of the Supreme Court of Indian; that a certified copy of said motion is attached hereto and made an exhibit hereto as a part of Exhibit 'A'.

'Relators would further show that their motion filed for the selection of a special judge was timely and properly filed and is sufficient in form and substance under the law and the rules of the Supreme Court of the State of Indiana to entitle Relators to a change of venue from the Special Judge in said cause that said cause of action was such a cause for which a change of venue and selection of a special judge is allowed by law. That more than 120 days have elapsed since the 15th day of February, 1966, the date upon which the Relators filed their motion for the selection of a special judge in said cause, and that the Hon. Robert W. McNevin has failed and refused to act upon said motion.

'8. That more than 60 days have elapsed since said 'Defendants' Motion for Selection of Special Judge' was filed in said action and that Respondent, Robert W. McNevin, has failed and refused to act upon said motion as presented for determination; further, said Respondent has indicated by word and deed that he will take no action upon said motion as presented for determination.

'9. The Relators make a part of this petition for mandate and attach hereto a certified copy of the record of the proceedings of said cause now pending in the Hamilton Circuit Court and before the Respondent, the Hon. Robert W. McNevin, Special Judge of said court in said cause, and the same is marked Exhibit 'A'; that said copy is properly certified by the Clerk of the Hamilton Circuit Court under the seal of said court.

'WHEREFORE, Relators here pray that an alternative writ of mandate be issued against Respondent herein, mandating the granting of Defendants' Motion for Selection of Special Judge in said cause entitled 'State of Indiana, in the Relation of the Hamilton County Circuit Court vs. Jim Neal, The Noblesville Daily Ledger, a corporation,' the same being Cause No. C5--099 in said Hamilton Circuit Court, and commanding Respondent to show cause on or before a day to be fixed by the court why the writ should not be made permanent and for all other proper relief.'

The petition for the Writ was filed July 11, 1966, and on that date the court issued an alternative writ of mandate '* * * commanding the Hamilton Circuit Court and Robert W. McNevin, as Special Judge thereof, to grant the Defendants' Motion for Selection of Special Judge in said cause entitled 'State of Indiana, in the Relation of the Hamilton County Circuit Court vs. Jim Neal, The Noblesville Daily Ledger, a corporation,' the same being cause No. C5--099 in said Hamilton Circuit Court, or,...