State ex rel. Rans v. Fulton Circuit Court

• Decision Date: 04 February 1960
• Docket Number: No. 29868,29868
• Parties: STATE of Indiana ex rel. Delbert R. RANS, Jr., Relator, v. FULTON CIRCUIT COURT and Roy E. Sheneman, Special Judge, Respondents.
• Court: Indiana Supreme Court

Page 111

164 N.E.2d 111

240 Ind. 288

STATE of Indiana ex rel. Delbert R. RANS, Jr., Relator, v. FULTON CIRCUIT COURT and Roy E. Sheneman, Special Judge, Respondents.

No. 29868.

Supreme Court of Indiana.

Feb. 4, 1960.

Marshall F. Kizer, Plymouth, Charles C. Campbell, Arthur Metzler, Rochester, for appellant.

S. J. Crumpacker, Crumpacker, May, Beamer, Levy & Searer, South Bend, for appellee.

LANDIS, Judge.

Relator has filed an original action for writ of mandate and prohibition in this Court asking that respondent special judge be mandated to expunge the record made in cause number 19,626 in respondent court overruling relator's motion to withdraw the submission of said cause from respondent judge, and to further expunge all subsequent rulings by respondent judge, to prohibit any further proceeding by said judge, and that a new judge be appointed to assume jurisdiction in said cause. We issued the temporary writ.

The facts appearing of record are as follows: Relator brought suit against The Pennsylvania Railroad Company for damages and the jury returned a verdict in relator's favor for $6,500. On June 16, 1959, defendant railroad filed motion for new trial. On September 18, 1959 (94 days after the filing of the motion for new trial), relator filed motion to withdraw the submission from respondent special judge for the reason that under Rule 1-13 of this Court respondent should not hold the same under advisement for longer than 90 days. Respondent overruled relator's motion to withdraw the submission and set the motion for new trial for argument for October 8, 1959, at which time the motion for new trial was sustained. On November 16, 1959, relator filed his action for writ of mandate and prohibition in this Court.

Respondent contends the case of State ex rel. Beatty v. Nichols, 1954, 233 Ind. 432, 120 N.E.2d 407, is controlling of the case here before us. There the cause was heard by respondent judge and was taken under advisement on January 27, 1954. On April 29, 1954, relator-defendant filed petition to withdraw the submission under Rule 1-13. On May 20, 1954, the lower court overruled relator-defendant's motion, and a finding and judgment against relator-defendant was rendered by respondent court. The Court there noted in denying the writ that relator had previously pursued his case to final judgment in respondent court and that the original action of mandamus in the Supreme Court was not intended to be a substitute for an appeal.

We believe the Beatty case is decisive of the case before us for decision. The record here shows that the lower court has determined (rightly or wrongly) ¹ the issues pending before it by overruling relator's motion to withdraw the submission and thereafter sustaining the motion for new trial on October 8, 1959. This ruling is now deemed to be an appealable final judgment under the statute. ² Relator did not come into this Court with his original action until November 16, 1959, which was more than a month after the appealable judgment was rendered. As remarked in the Beatty case, '* * * If [the judgment below] had been in his favor, undoubtedly he would not have brought this action.' At page 434 of 233 Ind., at page 408 of 120 N.E.2d.

This Court has limited original jurisdiction under Burns' § 3-2201 ³ to grant the extraordinary remedy of mandate or prohibition where the lower court does not perform a duty enjoined on it by law or where it has no jurisdiction to act but is attempting to do so nevertheless. The writs were never intended to be a substitute for the remedy of appeal. State ex rel. Botkin v. Delaware Circuit Court, Ind.1959, 162 N.E.2d 611; State ex rel. Monchecourt v. Vigo, Ind.1959, 162 N.E.2d 614.

The temporary writ heretofore issued is dissolved and the...