State v. Montgomery Circuit Court

• Decision Date: 22 April 1959
• Docket Number: No. 29737,29737
• Citation: 157 N.E.2d 577,239 Ind. 337
• Parties: STATE of Indiana, in its sovereign capacity, Petitioner, v. MONTGOMERY CIRCUIT COURT, Howard A. Sommer, Judge, Respondent.
• Court: Indiana Supreme Court

Page 577

157 N.E.2d 577

239 Ind. 337

STATE of Indiana, in its sovereign capacity, Petitioner, v. MONTGOMERY CIRCUIT COURT, Howard A. Sommer, Judge, Respondent.

No. 29737.

Supreme Court of Indiana.

April 22, 1959.

Edwin K. Steers, Atty. Gen., Selwyn F. Husted, Sp. Counsel to Atty. Gen., William H. Wehrle, Richard M. Givan, Deputies Atty. Gen., for petitioner.

Howard A. Sommer, Crawfordsville, pro se.

Rochford, Blackwell & Rochford, Indianapolis, Parr, Parr & Parr, Scifres & Hollingsworth, Lebanon, Sidney A. Horn, Indianapolis, Frank N. Howard, Jr., Crawfordsville, amici curiae.

JACKSON, Judge.

This is an original action instituted by the State of Indiana, in its sovereign capacity, praying for a writ of mandate and prohibition, restricting and confining the respondent to its lawful jurisdiction in a certain highway condemnation suit originally filed in the Boone Circuit Court as Cause No. 20819, and subsequently venued to the Montgomery Circuit Court and docketed as Cause No. 32172, wherein the State of Indiana was plaintiff; and Noble Frank Denny and Gladys Mae Denny, Husband and wife, Troy H. Haney, d/b/a Downey Dunker Shops, and Ernest Smith and Robert Holmes, operators of a drive-in and station, and Sinclair Refining Company, mortgagee, were the defendants.

On December 3, 1958, this court issued its temporary writ of mandate and prohibition, preventing and prohibiting the respondent from taking any further steps and proceeding further in Cause No. 32172A pending in said Montgomery Circuit Court, and further ordering the respondent to show cause on or before the 7th day of January, 1959, why the writ should not be made permanent and Cause No. 32172 in said court be tried as a single cause.

Thereafter on January 6, 1959, the respondent filed his answer to the rule to show cause, praying therein that the temporary writ of prohibition heretofore issued be dissolved. On January 16, 1959, a brief was filed by amicus curiae for Troy Haney in support of the respondent's answer.

The trial court relied on Acts 1935, ch. 76, § 1, p. 228, being § 3-1702, Burns' 1946 Replacement, for authority in separating this cause. The pertinent part of that statute reads as follows:

'Sixth. That such plaintiff has been unable to agree for the purchase of such lands or interest therein or other property or right with such owner, owners or guardians, as the case may be, or that such owner is insane or an infant, and has no legally appointed guardian, or is a nonresident of the state of Indiana. All parcels lying in the county, and required for the same public use, whether owned by the same parties or not, may be included in the same or separate proceedings at the option of the plaintiff; but the court or judge may consolidate or separate such proceedings to suit the convenience of parties and the ends of justice. The filing of such complaint shall constitute notice of such proceedings to all subsequent purchasers and persons taking encumbrances of the property, who shall be bound thereby.'

The State contends that the above statute does not authorize separate proceedings for each person holding an interest in a particular parcel of land, but can only be construed to provide for separate proceedings for the owners of separate parcels lying within the area taken in a single project. In this proceeding the condemnation action was instituted against a single tract of land but against several different interests in said parcel. It appears from the record that the fee simple owners were Noble Frank Denny and Gladys Mae Denny, husband and wife, that Troy H. Haney, d/b/a Downey Dunker Shops, held a leasehold interest in said real estate, and that Sinclair Refining Company also held a leasehold interest in said real estate.

The issues in this case turn on the question as to whether or not the trial court has statutory authority to separate this proceedings. From an examination of the...