State v. Friedley

• Decision Date: 02 November 1898
• Docket Number: 18,623
• Citation: 51 N.E. 473,151 Ind. 404
• Parties: The State v. Friedley
• Court: Indiana Supreme Court

51 N.E. 473

151 Ind. 404

The State v. Friedley

No. 18,623

Supreme Court of Indiana

November 2, 1898

Original Action.

Writ of Mandate denied.

Harry R. McMullen, for State.

Warren N. Hauck, for respondent.

OPINION

Hackney, C. J.

The questions herein arise upon demurrer to a petition on behalf of Harry R. McMullen, prosecuting attorney for the Seventh Judicial Circuit, against William T. Friedley, special judge of the Dearborn Circuit Court. It is alleged that the respondent, acting as special judge in the trial of a suit for divorce, admitted the prosecuting attorney to defend therein, upon the representation that the suit was collusive, and the defense made by the defendant therein was not in good faith. The suit proceeded to trial, and decree in favor of the plaintiff therein, and an order that the prosecuting attorney be discharged from further service in said suit, to which order there was an objection, but no exception. It is shown that thereafter said prosecuting attorney, during the term, tendered a motion for a new trial of said suit, which motion the court, said judge presiding declined to entertain, or allow to be filed. Neither said motion nor the grounds thereof appear from the petition herein. It is also shown that after the term, time not having been sought or given beyond the term, said prosecuting attorney tendered to the respondent a general bill of exceptions, relating to questions of evidence only, and asked that the same be signed and ordered made a part of the record, which the respondent declined to do. The prayer of the petition is that the alternative writ of mandate issue directing the respondent to show cause, if any, why said motion for a new trial should not be filed, and said bill of exceptions signed and made a part of the record. From these facts there is possible inference, but no allegation to the effect, that the prosecuting attorney desires or intends to appeal from the decree in said suit. In support of the demurrer it is insisted that no appeal by a prosecuting attorney appearing in a divorce suit will lie. There is no provision of the statute expressly allowing an appeal by the prosecutor. The only statute permitting him to defend is section 1038, Horner's R. S. 1897, as follows: "Whenever a petition for divorce remains undefended, it shall be the duty of the prosecuting attorney to appear and resist such petition." Whether the prosecutor, appearing in pursuance of this provision, appears simply as an attorney or whether he, in his representative capacity, becomes so far a party as to give him or to give the State an appealable interest in any case are questions not necessary at this time to decide.

In this case his appearance, if authorized by the statute quoted there having already been a defense, was upon the theory that such defense was not in good faith,--was no defense. The court, having heard the case, upon the evidence, rejected the prosecutor's defense, and, whatever his legal attitude toward the case, he was expressly discontinued as a representative of the State in that behalf. To this action of the court there was no exception, and there can be no question for appeal arising therefrom. Section 626, Horner's R. S. 1897; Chicago, etc., R. W. Co. v. McBeth, 149 Ind. 78, 47 N.E. 678; Lime City, etc., Savings Ass'n v. Black, 136 Ind. 544, 35 N.E. 829; Butler v. Thornburgh, 141 Ind. 152, 40 N.E. 514; Hedrick v. Whitehorn, 145 Ind. 642, 43 N.E. 942; Johnson v. Eberhart, 140 Ind. 210, 39 N.E. 459; Fletcher v. Waring, 137 Ind. 159, 36 N.E. 896. Having had his...