State, ex rel. Neal v. Superior Court of Marion County

• Decision Date: 12 February 1931
• Docket Number: 25,984
• Citation: 174 N.E. 732,202 Ind. 456
• Parties: State, ex rel. Neal v. Superior Court of Marion County, Room 2, et al
• Court: Indiana Supreme Court

174 N.E. 732

202 Ind. 456

State, ex rel. Neal v. Superior Court of Marion County, Room 2, et al

No. 25,984

Supreme Court of Indiana

February 12, 1931

Rehearing Denied March 12, 1931.

Original proceeding in Supreme Court.

Banus E. Neal filed a petition in the Supreme Court of Indiana seeking a writ of prohibition against the Superior Court of Marion County, Room 2, and Joseph R. Williams as judge thereof, prohibiting said court from exercising jurisdiction in a case entitled "Banus E. Neal v. Knox Consolidated Coal Company" and the receivership of said coal company pending therein.

Temporary writ of prohibition dissolved and writ denied.

Ewbank & Dowden, for petitioner.

Cox & Adams, for respondents.

Martin J. Myers, C. J., and Travis, J., dissent.

OPINION

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-44,005 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 bondholder, 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 court's 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."

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 p. 48, note to § 1681 Burns 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 (§ 1527 Burns 1926) and that the superior judges elected at that time took office January 1, 1931. § 1, ch. 10, Acts 1929, § 1811 Burns Supp. 1929.

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, Rec., v. Thomas (1885), 104 Ind. 59, 3 N.E. 653; Livingston v. Livingston (1921), 190 Ind. 223, 130 N.E. 122. But, if a regular and valid order of a court (granting a motion for a change of venue) divests it of jurisdiction of a case and another court lawfully acquires jurisdiction thereof, the first court, by a later order, cannot recall the case or exercise any further jurisdiction therein. See Niagara Oil Co. v. Jackson (1910), 48 Ind.App. 238, 91 N.E. 825; Toledo, etc., R. Co. v. Wright (1879), 68 Ind. 586, 600, 34 Am. Rep. 277.

The vital question in the case at bar is whether the order entered on December 23, 1930, divested the Marion Superior Court, Room 2, of jurisdiction in the...