State ex rel. Weatherholt v. Perry Circuit Court

• Citation: 185 N.E. 510,204 Ind. 673
• Decision Date: 15 May 1933
• Docket Number: 26,311
• Parties: State ex rel. Weatherholt v. Perry Circuit Court et al
• Court: Supreme Court of Indiana

185 N.E. 510

204 Ind. 673

State ex rel. Weatherholt v. Perry Circuit Court et al

No. 26,311

Supreme Court of Indiana

May 15, 1933

1. OFFICERS---Impeachment of Local Officers---Pleading---Demurrer.---In an action for removal of a township trustee under 12139 Burns 1926, the trustee's objections thereto, that "said accusation does not state, or contain facts sufficient to constitute a cause of action," was equivalent to a demurrer for want of facts p. 674.

2. OFFICERS---Impeachment of Local Officers---Nature of Proceeding.---The statutory proceeding for removal of a township trustee (12139 Burns 1926) is neither a criminal nor civil action, but is a special statutory action summary in character. p. 675.

3. CRIMINAL LAW---Impeachment of Local Officers---No Bar to Criminal Action.---If an impeachment proceeding against a township trustee under 12139 Burns 1926 involves a crime such proceeding does not bar a criminal action for the crime p. 675.

4. ACTION---"Summary Proceeding"---Established Practice Disregarded.---A "summary proceeding" is a form of trial in which the established course of legal proceedings is disregarded. p. 675.

5. OFFICERS---Impeachment of Local Officers---Change of Venue.---In a summary proceeding for removal of local officers under 12139 Burns 1926, there is no method provided for a change of venue from the county, but a change of judge may be had under 443 Burns 1926. p. 675.

6. OFFICERS---Impeachment of Local Officers---Sufficiency of Complaint.---A complaint for removal of a township trustee alleging his refusal to employ teachers until they had arranged to pay his wife, as employment agent, a percentage of their salaries for procuring him to employ them, was sufficient to bring the action within 12139 Burns 1926. p. 675.

7. OFFICERS---Impeachment of Local Officers---Jurisdiction in Trial Court.---By statute (12139 Burns 1926), jurisdiction of an impeachment proceeding against a township trustee is in the circuit court, which includes jurisdiction to determine the sufficiency of pleadings therein. p. 675.

8. PROHIBITION---Against Trial Court---In Matters of Judicial Discretion.---Where a trial court has jurisdiction, his exercise of judicial discretion will not be controlled or interfered with by an appellate court except on appeal. p. 675.

Original action by the state on relation of Walter Weatherholt for a writ of prohibition against the Perry Circuit Court and others.

Temporary writ vacated and dissolved and prayer denied.

Edmund L. Craig and William L. Mitchell, for relator.

James L. Houston, special prosecuting attorney, for the State.

Urdix B. Ewing, for respondents.

OPINION

Fansler, J.

This is an original action in this court for a writ of prohibition, temporary and permanent, restraining the respondents from further action in connection with a certain proceeding pending in the Perry Circuit Court for the removal of the relator as township trustee of Tobin Township in said county. The asserted basis for the writ is want of jurisdiction of the subject matter in the Perry Circuit Court, and that relator has no adequate remedy other than the writ prayed for. Upon the filing of the petition a temporary writ issued.

A complaint was filed against the relator in the name of the State of Indiana as plaintiff, which is sufficient on its face to show that the relator is trustee of Tobin Township in Perry County, and that his removal as such trustee is sought under Section 12139 Burns 1926. The relator was cited to appear to the complaint and show cause why the relief prayed should not be granted. He appeared and filed an affidavit for a change of judge, which was granted, and the respondent Fred A. Heuring, was appointed special...