State ex rel. Wheeler v. Leathers

• Citation: 197 Ind. 97,149 N.E. 900
• Decision Date: 15 December 1925
• Docket Number: No. 24923.,24923.
• Parties: STATE ex rel. WHEELER v. LEATHERS, Special Judge, et al.
• Court: Supreme Court of Indiana

197 Ind. 97

149 N.E. 900

STATE ex rel. WHEELER

v.LEATHERS, Special Judge, et al.

No. 24923.

Supreme Court of Indiana.

Dec. 15, 1925.

Original action for writ of prohibition by the State of Indiana, on the relation of Altie G. Wheeler, against Hon. James M. Leathers, Special Judge of the Marion Circuit Court, and another, wherein a restraining order was issued. Restraining order set aside and dissolved, and prayer of petition denied.

Ward H. Watson and Sol H. Esarey, both or Indianapolis, for appellant.

William Bosson and Merle N. A. Walker, both of Indianapolis, for appellees.

MYERS, J.

This is an original action brought in this court for a writ of prohibition (Acts 1915, p. 207, c. 87, § 1; section 1224, Burns' Supp. 1921) against the Honorable James M. Leathers as special judge of the Marion circuit court, praying that he “be restrained from further sitting and acting as such special judge, ***” except to sustain relator's motion for a change of venue in a cause pending in the Marion circuit court on appeal by relator from an improvement assessment made against her real estate.

From the complaint, it appears that on August 31, 1921, the board of public works of the city of Indianapolis, pursuant to the provisions of section 1, Acts 1909, p. 238, c. 93 (section 8729, Burns' 1914), adopted a resolution for the construction of a sewer partly within and partly without the corporate limits of the city of Indianapolis. On September 7, 1921, the board of works filed in the Marion circuit court a copy of all proceedings had in the matter of the improvement, including a list of all persons, among whom was this relator, whose property would be thereby affected. Thereafter such proceedings were had that on April 15, 1922, the board of assessors, appointed October 22, 1921, filed their report assessing benefits and damages to the lots and land affected by the proposed improvement, which included an assessmentof benefits against the relator's 70-acre tract of farm land without the corporate limits of the city of Indianapolis. Within 15 days thereafter, relator appealed from the assessment so made against her real estate, assigning thirteen reasons why the assessment should be canceled and stricken out, and that she be awarded damages. Thereupon the regular judge of the Marion circuit court, on his own motion, vacated the bench, and the defendant, Leathers, was appointed and qualified as special judge and assumed jurisdiction of the proceedings. On April 7, 1925, relator, in the Marion circuit court, filed her affidavit and application for a change of venue from the defendant Leathers on the ground that she could not have a fair and impartial trial on account of his bias and prejudice against her. This motion and application for a change of judge was overruled on April 9, 1925, for the reason then and there stated “that a change of venue was not demandable in said cause, and that he (Leathers) could not be ousted of his jurisdiction therein,” and that he would try the cause beginning April 13, 1925.

The complaint also shows that the relator would be subjected to a large and useless expense in the trial of the cause, which cannot be taxed as costs, and that she has no other adequate remedy at law for the removal of the defendant who is proposing to preside at the trial.

This court, upon the facts disclosed by relator's verified complaint, issued a temporary writ as prayed until its further order. Thereafter the defendants, Leathers and the City of Indianapolis, appeared and by motion to dissolve the writ challenged the complaint as upon demurrer for want of facts. Therefore the question upon the complaint is: Shall the writ be made permanent?

[1] The second proviso of the statute upon which the complaint at bar rests clearly authorizes this court to issue writs of mandate to compel courts therein named to perform “any duty enjoined upon them by law,” and to issue writs of prohibition confining such courts “to their respective lawful jurisdictions.” However, it must be kept in mind that these writs will not issue to control judicial action, or be made to serve the purpose of an appeal or a writ of error in reviewing or reversing a judicial decision. State ex rel. Jones v. Williams, Judge, 187 Ind. 89, 118 N. E. 564.

[2] Relator, it is admitted, by an unquestioned affidavit timely filed, sought a change of judge under subdivision 7, § 422, Burns' 1914 (section 412, R. S. 1881). The cause thus seasonably invoked for a change involved no issue of fact to be determined or matter calling for the exercise of judicial discretion. The language of this statute, “shall change the venue” in all civil actions, is an arbitrary mandate or duty imposed by law on the court in term or the judge thereof in vacation to grant the change. Fisk v. Patriot, etc., Turnpike Co., 54 Ind. 479;Krutz v. Howard, 70 Ind. 174;Burkett v. Holman, 104 Ind. 6, 3 N. E. 406;Shaw v. State (Ind. Sup.) 146 N. E. 855;Federal Cement Tile Co. v. Korff, 50 Ind. App. 608, 97 N. E. 185.

If we were to stop here there might be reason for saying that upon the filing of the affidavit of bias and prejudice it became the duty of the judge to pronounce the judgment of the law upon the theory of an express duty enjoined upon him by law, and not upon the assumption that the court lost jurisdiction to proceed further in a cause over which jurisdiction of the subject-matter and of the person is not otherwise questioned. State ex rel. v. Wolever, 127 Ind. 306, 318, 26 N. E. 762;Turner, Sheriff, v. Conkey, 132 Ind. 248, 251, 31 N. E. 777, 17 L. R. A. 509, 32 Am. St. Rep. 251;Peters v. Koepke, 156 Ind. 35, 39, 59 N. E. 33;Stockton v. Ham, 180 Ind. 628, 102 N. E. 378, 103 N. E. 482.

Appellant has called our attention to Krutz v. Howard, supra, People ex rel. v. District Court, 60 Colo. 1, 152 P. 149,State ex rel. v. Superior Court, 97 Wash. 358, 166 P. 630, L. R. A. 1917F, 905, and other cases which seem to sustain her contention that the improper refusal of a change of venue ousted the court of jurisdiction, and hence a writ of prohibition should issue confining the court to its lawful jurisdiction. The statement in the Krutz Case on the subject of jurisdiction was made in a cause on appeal from a final judgment, and the thought therein expressed has long since been abandoned in this state. The Washington Case cited was an original action in the Supreme Court for a writ of prohibition, and in many respects the facts there were not unlike the case at bar. The writ was allowed, but the court planted its decision upon section 1028 of the Code of that state (Rem. Code 1915), which provided that a writ of prohibition “may be issued *** in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law.” We have no such statute in this jurisdiction. The reasoning in that case, in support of the writ is quite persuasive, but not sufficient to warrant us in changing the rule so long followed in this state, and which must prevail in the decision of the question now under consideration.

[3] Counsel for respondent Leathers earnestly insist that a change of judge was not demandable in a cause growing out of a special proceeding under a statute (section 8729, supra) which makes no provision therefor. We may also add that the statute does not forbid a change and is silent on the subject. It is well settled in this jurisdiction that the mere fact that a proceeding...