State ex rel. Oviatt v. Knowles, 29519

• Decision Date: 25 April 1957
• Docket Number: No. 29519,29519
• Parties: STATE of Indiana on Relation of Clyde OVIATT, Relator, v. Francis E. KNOWLES, as Special Judge of the Vanderburgh Circuit Court, and the Vanderburgh Circuit Court, Vanderburgh County, State of Indiana, Respondents.
• Court: Indiana Supreme Court

Page 854

141 N.E.2d 854

236 Ind. 517

STATE of Indiana on Relation of Clyde OVIATT, Relator, v. Francis E. KNOWLES, as Special Judge of the Vanderburgh Circuit Court, and the Vanderburgh Circuit Court Vanderburgh County, State of Indiana, Respondents.

No. 29519.

Supreme Court of Indiana.

April 25, 1957.

Welborn & Miller, Wilbur Dassel, Evansville, for relator.

James H. Meyer, John G. Bunner, Evansville, for respondents.

BOBBITT, Judge.

Relator, a contestee in an election contest pending in the Vanderburgh Circuit Court, brings this action to prohibit respondents from proceeding further therein because a time for hearing of the contest proceedings, no recount being here involved, was not fixed within twenty days after November 23, 1956, the return day fixed in a notice to the contestee-relator as provided by Acts 1945, ch. 208, § 346, p. 680, being § 29-5506, Burns' 1949 Replacement.

We issued a temporary writ.

Prohibition is an extraordinary remedy and will not issue unless respondent court is acting, or attempting to act, without the bounds of its jurisdiction. State ex rel. Public Service Comm. v. Marion C. Ct., 1952, 230 Ind. 277, 291, 100 N.E.2d 888, 103 N.E.2d 214.

Jurisdiction is the right, authority and power to hear and determine a cause of action. Department of Insurance v. Motors Insurance Corp., 1956, Ind.Sup., 138 N.E.2d 157, 161.

Jurisdiction embraces three essential elements: (1) jurisdiction of the subject-matter; (2) jurisdiction of the person; and (3) jurisdiction of the particular case. State ex rel. Johnson v. Reeves, 1955, 234 Ind. 225, 228, 125 N.E.2d 794. $The Vanderburgh Circuit Court had jurisdiction of the general subject-matter. Acts 1951, ch. 87, § 1, p. 275, being § 29-5504, Burns' 1949 Replacement (1955 Cum.Supp.).

To sustain his position that the Vanderburgh Circuit Court lost jurisdiction of the case by failing to fix a time for hearing as provided by § 29-5506, supra, relator relies upon certain decisions of this court which we believe are clearly distinguishable from the case at bar, hence lend no support to his position herein.

Two of such cases, Humphries v. McAuley, 1933, 205 Ind. 469, 187 N.E. 262, and Jones v. State ex rel., 1928, 200 Ind. 328, 163 N.E. 260, are grounded upon English v. Dickey, 1891, 128 Ind. 174, 27 N.E. 495, 496, 13 L.R.A 40. The latter case was concerned with the construction of § 4760 and § 4761, R.S.1881, which provided that the board of county commissioners try election contests, and that they might 'continue the trial from time to time, not exceeding twenty days altogether;'. There the court held that this statute fixed the lief of the special tribunal, and that the special court itself expired at the end of that period and with it the cause of action.

The same question was involved in Jones v. State ex rel., supra, 1928, 200 Ind. 328, 163 N.E. 260.

The question at issue in Humphries v. McAuley, supra, 1933, 205 Ind. 469, 187 N.E. 262, was whether or not a material amendment could be made to the petition to contest, after the time for filing the petition had expired. The court there properly held that the ten day period of time fixed by statute, within which to file a petition for contest was in effect a statute of limitation and the amendment there proposed could not be made.

Gossard v. Vawter, 1939, 215 Ind. 581, 21 N.E.2d 416, also relied upon by relator, involved the amendment to a petition to contest. There this court held that unless the petition for contest was filed within the ten day limitation fixed by statute the court to which the petition was addressed would acquire no jurisdiction.

Relator relies particularly upon a statement from the opinion in Humphries v. McAuley, supra, which is to be found in English v. Dickey, supra, 1891, 128 Ind. 174, 178, 27 N.E. 495, 496, 13 L.R.A. 40, as a quotation from Bull v. Southwick, 1882, 2 N.M. 321, and which is as follows:

"These statutory provisions as to the time of filing and serving the notice of contest, answer, and reply are, in effect, statutes of limitation, taking from the judge all discretion as to extending the time."

The New Mexico statute there in question limited the time within which answers should be filed. The language in the above quotation must be considered in connection with the facts to which it was applied which, in that case, was to the filing of an answer--an act to be performed by the defendant-contestee. The reason for such ruling in that case is readily apparent. If no time limitation were placed upon the filing of an answer, defendant-contestee could delay the proceedings indefinitely, and if in possession of the office retain such until the expiration of the term under contest.

Much reliance is also placed upon the following statement from Gossard v. Vawter, supra, 1939, 215 Ind. 581, 584, 21 N.E.2d 416, which is a quotation from Slinkard v. Hunter, 1936, 209 Ind. 475, 478, 199 N.E. 560, 562:

'The public has an interest in the speedy determination of controversies affecting elections, and provisions of the statute limiting the time within which steps may be taken are universally regarded as mandatory, and unless they are strictly complied with the court is without jurisdiction of the subjectmatter. 20 C.J. § 280, p. 220, and cases there cited.'

In the Slinkard case the contestor failed to file with his petition for recount and to contest a sufficient written undertaking as required by statute. ¹ The contestee filed a motion to strike out the petition for recount because of the failure to file an undertaking as provided in the contest statute. The trial court sustained this motion and on its own motion struck out the petition to contest. This court there held that by reason of the failure of the petitioner to file an undertaking as required by the statute no jurisdiction was vested in the court to appoint a recount commissioner.

To determine the scope of the application of the rule of law quoted in the above cases, it is well to consider its source and the reason for its enunciation.

The above quotation from the Slinkard case was grounded upon a statement from 20 C.J. § 280, p. 220 (29 C.J.S. Elections § 258, p. 370), as follows:

'The intention of the contested election laws is to have such contest speedily determined so that the rightful claimant may enjoy as nearly as practicable the entire term for which he has been chosen. Consequently the statutes generally provide that anyone desiring to contest an election must file and serve a notice and statement of the grounds of contest within a certain number of days after the election, or the official declaration of the result. These provisions are regarded as mandatory, and...