State ex rel. Ripa v. Lake Superior Court, Room 1

• Decision Date: 28 September 1942
• Docket Number: 27757.
• Citation: State ex rel. Ripa v. Lake Superior Court, Room 1, 43 N.E.2d 871, 220 Ind. 436 (Ind. 1942)
• Parties: STATE ex rel. RIPA, Consul General of Poland, v. LAKE SUPERIOR COURT, ROOM 1.
• Court: Indiana Supreme Court

43 N.E.2d 871

220 Ind. 436

STATE ex rel. RIPA, Consul General of Poland, v. LAKE SUPERIOR COURT, ROOM 1.

No. 27757.

Supreme Court of Indiana

September 28, 1942

Sevald & Sevald, of Hammond, for appellant.

SWAIM Judge.

Frank Mlynarczyk, a citizen of the United States of America, died intestate June 3, 1942, a resident of Lake County, Indiana. His brother, Alexander Mlynarczyk, also a citizen of the United States and a resident of Lake County, Indiana, waived his right to be appointed as administrator of the decedent's estate and petitioned the Lake Superior Court, Room 1, to appoint The Calumet National Bank of Hammond, which bank had, for sometime prior to the death of the decedent, been acting as his guardian.

Within twenty days after the death of the decedent the relator Karol Ripa, as Consul General of the Republic of Poland, with offices in Chicago, Illinois, filed a petition in the Lake Superior Court, Room 1, to revoke the letters of administration issued to The Calumet National Bank of Hammond and prayed that he be appointed administrator of said decedent's estate or in the event that the court should deem it proper to appoint a citizen and resident of Hammond Indiana, that Clement B. Knapp be appointed as such administrator.

This petition was denied by the court below and, thereafter, the petitioner filed a motion to modify the judgment thereon which was overruled. Relator's motion for a new trial was also overruled and the relator then prayed an appeal to this court.

Instead of perfecting said appeal, the relator has filed in this court his petition for a writ of mandate praying than an alternative writ of mandate issue under the direction of this court directing and requiring the respondent, as Judge of the Lake Superior Court, Room 1, to revoke the letters of administration issued to The Calumet National Bank of Hammond, in the matter of the estate of Frank Mlynarczyk, deceased; and to appoint the relator or C. B. Knapp, a citizen and resident of Hammond, Indiana, as administrator of said estate.

Mandamus may never be used to control judicial discretion. As said by this court in State ex rel. Benson v. Superior Court of Marion County, et al., 1933, 205 Ind. 464, 187 N.E. 203, 204; 'The writ of mandamus is a proper one to compel judicial action and to compel courts to act where they refuse to act and ought to act, but not to direct and control the judicial discretion to be exercised in the performance of the act to be done; to compel the court to hear and decide where they have jurisdiction, but not to predetermine the decision to be made; to require them to proceed to judgment, but not to fix and prescribe the judgment to be rendered. [citing cases]'

The relator predicates his right to be appointed as administrator on the fact that the decedent left surviving him a father and a brother, who are residents and nationals of Poland; and on certain provisions of the Treaty between the United States of America and the Republic of Poland, 48 Stat. 1507, regulating commerce and consular rights.

Article XXII of said Treaty provides that in case of the death of a national of either of the High Contracting Parties in the territory of the other, without having in the locality of his decease any known heirs or testamentary executor, it shall be the duty of the local authorities to at once inform the nearest consular officer of the state of which the deceased was a national; that such consular officer shall, so far as the laws of the country permit and pending the appointment of an administrator, be deemed qualified to take charge of the property left by the decedent for the preservation and protection thereof; that 'such consular officer shall have the right to be appointed as administrator within the discretion of a tribunal or other agency controlling the administration of estates provided the laws of the place where the estate is administered so permit.' This section further provides that: 'In case of the death of a national of either of the High Contracting Parties without will or testament and without any known heirs resident in the country of his decease, the consular officer of the country of which the deceased was a national shall be appointed administrator of the estate of the deceased, provided the regulations of his own Government permit such appointment and provided such appointment is not in conflict with local law and the tribunal having jurisdiction has no special reasons for appointing someone else.'

Article XXIV of the Treaty provides as follows: 'A consular officer of either High Contracting Party shall, within his district, have the right to appear personally or by delegate in all matters concerning the administration and distribution of the...