State v. Bridwell, 1

• Decision Date: 31 October 1960
• Docket Number: S,No. 30016,No. 1,1,30016
• Parties: STATE of Indiana, In its Sovereign Capacity, State of Indiana, on the relation of John Peters, Charles M. Dawson and H. E. Bodine, as members of and constituting the State Highway Department of Indiana, Petitioners, v. Robert V. BRIDWELL, Special Judge in the case of Jules T. Gradison and Rita J. Gradison vs. John Peters, Charles M. Dawson, H. E. Bodine, George M. Foster, Jack A. Haymarker, and Albert Steinwedel, pending in Room I, Superior Court of Marion County, M. Walter Bell, Regular Judge, Superior Court of Marion County, Roomuperior Court of Marion County, Roomuperior Court of Marion County, Respondents.
• Court: Indiana Supreme Court

Page 233

170 N.E.2d 233

241 Ind. 135

STATE of Indiana, In its Sovereign Capacity, State of

Indiana, on the relation of John Peters, Charles M. Dawson

and H. E. Bodine, as members of and constituting the State

Highway Department of Indiana, Petitioners, v. Robert V. BRIDWELL, Special Judge in the case of Jules T.

Gradison and Rita J. Gradison vs. John Peters, Charles M.

Dawson, H. E. Bodine, George M. Foster, Jack A. Haymarker,

and Albert Steinwedel, pending in Room I, Superior Court of

Marion County, M. Walter Bell, Regular Judge, Superior Court

of Marion County, Room No. 1, Superior Court of Marion

County, Room No. 1, Superior Court of Marion County, Respondents.

No. 30016.

Supreme Court of Indiana.

Oct. 31, 1960.

Rehearing Denied Nov. 28, 1960.

Edwin K. Steers, Atty. Gen., Robert Hollowell, Indianapolis, Special Counsel, Hollowell & Hamill, Indianapolis, of counsel, for petitioners.

Smith & Jones, Indianapolis, for respondents.

ARTERBURN, Judge.

The State of Indiana, in its Sovereign Capacity and on the relation of John Peters et al. as members of the State Highway Department of Indiana, petitioned this Court for a writ of mandate and prohibition to confine the respondent, Robert V. Bridwell, Special Judge, Superior Court of Marion County, Room 1 and M. Walter Bell, Regular Judge thereof, to their lawful jurisdiction in a certain cause of action filed in the Superior Court of Marion County, Room 1 as Cause No. S60-4769 entitled Jules T. Gradison and Rita J. Gradison, plaintiffs v. John Peters, Charles M. Dawson, H. E. Bodine, George M. Foster, Jack A. Haymaker and Albert Steinwedel, defendants.

The action filed in Superior Court of Marion County, Room 1 sought to enjoin certain acts in another case (being a condemnation action to take land for highway purposes pending in the Superior Court of Marion County, Room 3). Among the acts sought to be enjoined was the payment of the appraisers' award in that case by Albert Steinwedel as Auditor of State, the taking of possession of the land so appropriated and the executing of contracts for the highway work by state officials. A restraining order was issued without notice by the trial court (respondent herein) restraining such action. We thereupon issued a temporary writ of prohibition against such interference by the respondent judges in the case pending in Superior Court Room No. 1.

The Gradisons, in their action for injunction and restraining order in Superior Court Room No. 1, allege that they bring the action as taxpayers. Their complaint, however, shows that they are also the owners of the real estate condemned and appropriated in the prior pending action by the State of Indiana for highway purposes. They further allege that they agreed to certain stipulations in the condemnation action (to withdraw their objections and to an appraisal) by reason of the false and fraudulent threats 'of the relators to take more property and in fact all their property unless they cooperated'.

On the other hand, the relators claim that the gravamen of the action brought by the respondents in Superior Court Room No. 1 is really an attempt to get a court to determine whether or not the State should plan the highway so as to go over or under Twenty-First Street and that the Highway Department and state officials are, in fact, enjoined until they give consideration to the alternative designs proposed by the Gradisons and until they alter the plans and designs to conform to those propounded by the Gradisons; that the injunctive action brought by the Gradisons seeks to control the discretion of the state officials.

The restraining order issued in this case on July 25, 1960 by the respondent trial court prevented the State of Indiana from paying the appraisers' award as damages to the Gradisons for the land taken and from entering into construction contracts for more than $3,000,000. The restraining order was issued without notice and on a bond in the penal sum of $5,000. The record shows the Gradisons then filed a motion to continue the hearing on the temporary injunction. There has since been, upon application of the Gradisons, a motion for a change of venue from the regular judge. Ninety days later no hearing had yet been held on the temporary injunction.

The record shows that the Gradisons, in the original condemnation action in Superior Court Room No. 3, filed a motion to set aside all proceedings therein subsequent to the objections filed by the Gradisons to the original condemnation complaint. In that motion they set out substantially all the allegations with reference to fraud and being coerced into withdrawing objections and into making stipulations, as are set out in the complaint for an injunction filed before the respondents in Superior Court Room No. 1.

The court in which it is claimed the error or fraud occurred is the proper forum in which to seek the relief claimed while the case is still pending and not in another proceeding before another judge.

The record does not disclose any ruling on the motion filed by the Gradisons in the condemnation action.

Still the Gradisons, not securing a ruling upon the issue raised in the condemnation action, have sought another forum and judge to present the same issues and have then procured a restraining order for the purpose of interfering with the condemnation proceeding then pending.

The Gradisons in their brief complain:

'It is clear that whatever attempts are made to achieve justice in one channel are met with opposition, and when attempts to achieve justice in another channel are sought by the Gradisons, they are likewise opposed. This, then, represents the attitude of the Relators. Any attempt on the part of the Gradisons to rectify injustice are to be met with opposition.'

An answer to such an argument is that the mere fact that a party is opposed in a court is no reason why he is entitled to ask another court or judge for relief. In seeking a remedy in court one may normally anticipate opposition; otherwise there would be no necessity for asking for legal action.

The contention made by relators that they are taxpayers only is not borne out by the allegations in the complaint. They are taxpayers and also real parties in special interest as owners of the land involved. Their special interest as such owners is set out, as well as the alleged...