State ex rel. Trotcky v. Hutchinson

• Decision Date: 03 October 1946
• Docket Number: No. 28220.,28220.
• Citation: 68 N.E.2d 649,224 Ind. 443
• Parties: STATE ex rel. TROTCKY v. HUTCHINSON, Circuit Judge.
• Court: Indiana Supreme Court

224 Ind. 443

68 N.E.2d 649

STATE ex rel. TROTCKY

v.HUTCHINSON, Circuit Judge.

No. 28220.

Supreme Court of Indiana.

Oct. 3, 1946.

Original action by the State, on the relation of Samuel L. Trotcky, against Frank E. Hutchinson, Judge of the Circuit Court of Boone County, for a writ of mandate and a writ of prohibition against the respondent.

Temporary writ dissolved, and permanent writ denied.Joseph & Dann, of Indianapolis, Parr, Parr & Parr, of Lebanon, and Ernest E. Dillon, of Indianapolis, for appellant.

Adney & Adney, of Lebanon, and Johnson & Zechiel, of Indianapolis, for appellee.

STARR, Chief Justice.

This is an original action filed by the relator against the respondent, Frank E. Hutchinson as Judge of the Circuit Court of Boone County, wherein the relator seeks a writ of mandate and a writ of prohibition against the respondent.

The facts in this case are that on March 7, 1944, a final decree was entered against the relator and in favor of Earl Van Sickie and others in the Boone Circuit Court. By the terms of this decree the relator was enjoined from the operation of his business on a certain farm owned by the relator in Marion County, in such a manner as to cause and create a private nuisance to the damage of the said judgment plaintiffs; that on March 23, 1946, the plaintiffs in said action filed and had docketed in the original action their complaint against relator for citation for contempt of court in disobeying said decree. Thereupon a citation was issued and served upon relator who appeared and after filing certain motions, a demurrer and an answer, filed an affidavit and motion for a change of venue from the respondent as judge. This motion was overruled by the respondent, at which time he stated that he intended to immediately set said cause for trial.

The complaint or petition for citation is fully set out in relator's petition filed herein. We have examined the same and it is our opinion that it is a proceeding in civil contempt. It was brought in the original action. The petition does not allege that relator's ‘disobedience is wilful and involves a deliberate design to disobey the order as an act of defiance of, and interference with the functions of the court.’ The state is not a party as required in criminal contempt. Ex parte Fenning (Ex parte Whipple), 1939, 216 Ind. 298, 23 N.E.2d 678. All the parties treated the same as for civil contempt, and the Court in his order to show cause issued thereon commanded the relator to show cause why he should not be fined for the benefit of the plaintiffs and punished for the purpose of securing compliance with the injunction.

The above quoted words are taken from the case of Denny v. State, 1932, 203 Ind. 682, 182 N.E. 313. This case clearly sets out the matters that distinguish a civil from a criminal contempt case.

The question presented to us for decision is whether or not a party is entitled to a change of venue from the judge in a civil contempt case under § 2-1402, Burns' 1933. This statute provides for a change of venue from the judge in ‘any matter of a civil, statutory or equitable nature not triable by a jury,’ upon the application of either party or his attorney, made upon affidavit, showing one or more of the reasons...