State ex rel. White Water Ass'n of Primitive Baptists v. Hoelscher, 26555.

• Decision Date: 25 May 1935
• Docket Number: No. 26555.,26555.
• Citation: 208 Ind. 334,196 N.E. 1
• Parties: STATE ex rel. WHITE WATER ASS'N OF PRIMITIVE BAPTISTS v. HOELSCHER, Judge.
• Court: Indiana Supreme Court

208 Ind. 334

196 N.E. 1

STATE ex rel. WHITE WATER ASS'N OF PRIMITIVE BAPTISTS

v.HOELSCHER, Judge.

No. 26555.

Supreme Court of Indiana.

May 25, 1935.

Original petition for mandamus by the State, on the relation of White Water Association of Primitive Baptists, against Gustave H. Holescher, Judge of Wayne Circuit Court.

Alternative writ theretofore granted made absolute.

Noble H. Wible, of Indianapolis, for relator.

Alonzo R. Feemster and Allison M. Feemster, both of Cambridge City, for respondent.

FANSLER, Chief Justice.

This is a petition for a writ mandating the respondent to grant relator a change of venue from the county upon the issue raised by the final report of an executor and exceptions thereto. An alternative writ issued.

It appears from the petition that Elizabeth J. Wallace died testate, the residuary clause in her will being as follows: ‘I give and bequeath and devise, all the rest and residue and remainder of my estate to Robert A. Hicks, my executor here and after named as such and direct that he sell and convert into money all of said property and after the payment of my debts, funeral expenses and expenses of last sickness and cost of administration, that he pay the remainder of said fund to the White Water Association of Primitive Baptists.’ Upon the filing of a final report by the executor, the White Water Association of Primitive Baptists filed objections and exceptions thereto, and, pending any further action, filed an affidavit and motion for change of venue from the county; the affidavit being made by Earl Daily, who described himself as the duly elected and acting clerk of the White Water Association of Primitive Baptists. The affidavit is sufficient in form. It appears that thereafter the executor filed a motion to strike out and reject the exceptions to the final report, and a separate motion to strike out the affidavit for change of venue from the county, both of which motions were sustained. We do not take seriously the contention that the trial court had a right to strike out the objections to the report after the motion for the change of venue was filed, and then refuse to grant the change because there was no issue pending. The cause was at issue, and a determination of the sufficiency of the objections pending involved an exercise of judicial discretion. If the affidavit for a change from the county complied with the statute (Burns' Ann. St. 1933, § 2-1401) the court was divested of jurisdiction to take any further action, except to grant the change. The respondent relies principally upon the proposition that the White Water Association of Primitive Baptists is not capable of suing or being sued, and therefore is not a party to the proceeding and is not entitled to a change. Reliance seems to be placed upon sections 25-1501 to 25-1511, Burns' 1933. It appears from the return that, after the motions to strike out the pleadings were filed, relator's attorney was notified by the court that they would be set down for hearing; that he acknowledged receipt of notice of the...