State ex rel. Uservo, Inc. v. Circuit Court of Huntington County
| Decision Date | 13 May 1940 |
| Docket Number | 27393. |
| Parties | STATE ex rel. USERVO, Inc., et al. v. CIRCUIT COURT OF HUNTINGTON COUNTY. |
| Court | Indiana Supreme Court |
Roland Obenchain, of South Bend, and Burr H. Glenn of Huntington, for appellant.
Claude Cline, of Huntington, and R. C. Parrish, of Fort Wayne, for appellee.
On March 16, 1940, relator filed its verified petition herein for a writ of prohibition and mandate. Upon the showing therein made, an alternative writ was issued. Relators have filed their responses, and, from the original petition and the responses herein filed, the following facts are made to appear:
On August 14, 1935, the relator herein filed in the Allen Circuit Court its complaint against one Johanna Selking Wyss trading as 'Sunshine Dairy,' praying, among other things, that she be perpetually enjoined and restrained from using, filling, distributing, or accumulating its milk bottles bearing its trade mark and registered name 'Uservo', and from disposing of or delivering them to any person other than it. The cause was afterwards venued to the Huntington Circuit Court and placed on the docket under cause No. 8746. There the cause was tried, and a decree entered on May 21, 1936. Upon petition subsequently filed, the decree of May 21, 1936, was modified on July 23, August 27, 1936, and on January 18, 1937.
On February 22, 1937, Mrs. Wyss, filed her first information with the court, and asked that a citation be issued against the relator and certain persons and officers of the Uservo Company, requiring them to appear and show cause, if any they had, why they should not be held in civil contempt. Certain objections to this petition were filed and sustained.
Afterwards, on June 18, 1938, Mrs. Wyss filed another verified petition and information for contempt. The citation was issued.
On January 17, 1939, Judge Otto H. Krieg, the duly elected, qualified, and acting judge of the Huntington Circuit Court, disqualified himself from hearing the contempt proceedings, and finally the respondent, J. Fred Fruchte, was appointed to hear and determine said contempt proceeding. Judge Fruchte qualified and assumed jurisdiction on February 28, 1939.
On July 19, 1939, a supplemental showing for a citation was filed by Mrs. Wyss. It was alleged in the petition that the relators herein had violated the decree theretofore entered and modified as hereinbefore stated, and that Mrs. Wyss had sustained damages by reason of such alleged violations.
On September 6, 1939, Judge Fruchte found the said Uservo Co., and certain individuals therein named, guilty of civil contempt, and found that Mrs. Wyss had been damaged thereby in a certain amount, and that the respondents therein should pay the same, and ordered them committed to jail until the said amount was paid. From this judgment said relators therein perfected an appeal to this court and the same is now pending as No. 27295.
On February 13, 1940, Mrs. Wyss again filed information in said cause No. 8746, wherein she alleged that said 'Uservo Inc.', and certain named persons, had violated the decree originally entered on May 21, 1936, and as modified on July 23, August 27, 1936, and on January 18, 1937, and lastly on August 16, 1939. The modified decree entered on August 16, 1939, was the result of a complaint for a review of the decree entered originally in cause No. 8746, on May 21, 1936, and as afterwards modified as hereinbefore set out. This complaint for a review was docketed under cause No. 9781, and was tried by Byron C. Kennedy as special judge. He made special finding of facts, and stated conclusions of law thereon, and entered a decree wherein he attempted to define the rights and duties of all the parties interested in said litigation. He made an order that a certified copy of the decree therein issued be filed by the clerk in cause No. 8746.
By her last petition and information, Mrs. Wyss again alleged that the 'Uservo Inc.', and the individuals therein named, were guilty of violating the orders of the court, and that she had sustained damages by reason of said stated wrongful acts, and petitioned the court to adjudge said parties to be in contempt of court, to fix the amount of her damages, and to inforce the payment thereof by imprisonment. She also sought a modification of said last mentioned decree, mamely the decree dated August 16, 1939, entered by Judge Kennedy in cause No. 9781, a certified copy of which had been filed in cause No. 8746.
The petition filed on February 13, 1940, was filed before the relator, Judge Fruchte, and he noted the filing thereof and ordered citation and also summons issued for the respondents therein named. The citation and summons fixed February 27, 1940, as the return day to said petition and citation.
On February 20, 1940, the respondents therein appeared in the Huntington Circuit Court before Judge Otto H. Krieg, regular judge of said court, and offered to file a verified petition wherein they requested him as the duly elected, qualified, and acting judge of the Huntington Circuit Court, to expunge the record of said court of all notes, entries, and orders appearing therein, made by J. Fred Fruchte, by reason of the offer and filing of the last petition for citation and to modify, for the reason that the said J. Fred Fruchte had no jurisdiction whatever to make said minutes, notes, and entries, and that he, as regular judge, was the only person who had any jurisdiction to make and issue the same. Judge Krieg refused to permit the respondents to file said petition, and refused to expunge the record of said named entries.
On February 27, 1940, the respondents therein appeared specially before J. Fred Fruchte for the purpose of objecting to the jurisdiction; and on March 4, 1940, filed in said cause their written objection to the jurisdiction of said J. Fred Fruchte over said matter. These written objections were overruled on March 13 1940, and on March 16, 1940, the relators herein, being the respondents named in the petition for a citation and to modify the decree filed on February 13,...
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