State ex rel. Price v. Weir

• Decision Date: 17 November 1936
• Docket Number: 26770.
• Parties: STATE ex rel. PRICE v. WEIR, Judge.
• Court: Indiana Supreme Court

4 N.E.2d 553

210 Ind. 606

STATE ex rel. PRICE v. WEIR, Judge.

No. 26770.

Supreme Court of Indiana.

November 17, 1936

Original action by the State, on the relation of David E Price, against Clarence E. Weir, Judge, etc., to prohibit respondent from exercising further jurisdiction in a suit wherein temporary writ of prohibition was granted.

Temporary writ made permanent.

Walter Pritchard and J. Fred Masters, both of Indianapolis, for appellant.

Holmes & Holmes, of Indianapolis, for appellee.

HUGHES, Chief Justice.

This is an original action filed in this court for the purpose of prohibiting the Marion superior court and the judge thereof from exercising further jurisdiction in the case of Judith Price v. David E. Price after the cause had been sent to the Hamilton circuit court on a change of venue.

The plaintiff filed her complaint for divorce and petition for support pendente lite in the Marion superior court on June 23, 1936. On September 15, 1936, the court, after hearing evidence, entered an order against the defendant, relator herein, to pay to the clerk of said court a certain sum of money for the support of the plaintiff pendente lite, and also a certain amount on account of attorney's fees for plaintiff. On September 10, 1936, the defendant filed a cross-complaint for divorce, and at the same time filed an affidavit and motion for a change of venue from the county. After the entry of September 15, 1936, for support money and attorney's fees, the motion for a change of venue from the county was sustained, and the cause was sent to the Hamilton circuit court, and the change of venue perfected within the time allowed. After said cause was sent to the Hamilton circuit court, the relator herein filed a petition and motion in said court to set aside the order made in the Marion superior court on September 15, 1936, providing for support money and attorney's fees; and, after a hearing and argument by the attorneys for the plaintiff and defendant, the Hamilton circuit court set aside said order, and held the same null and void.

On October 2, 1936, the Honorable Clarence E. Weir, judge of the Marion superior court, had issued and served upon the relator herein an order of citation ordering and directing him to appear in the Marion superior court before the said Judge Weir on October 10, 1936, to show cause why he, the relator, should not be punished for contempt for failure to pay the amount to the clerk as fixed in the order of the superior court of Marion county on September 15, 1936.

A temporary writ of prohibition was granted by this court prohibiting the Marion superior court and the judge thereof from exercising further jurisdiction in this cause and to show cause, if any, why the writ should not be made permanent.

Section 3-2201, Burns' Ann.St.1933, section 1090, Baldwin's Ind.St.1934, provides: ‘ Writs of prohibition may issue out of the Supreme Court to such circuit, superior, criminal probate, juvenile or municipal courts, respectively, to restrain and confine such circuit, superior, criminal, probate, juvenile or municipal courts,...