50 N.E.2d 918 | Ind. | 1943
The petitioner, First Merchants National Bank and Trust Company of Lafayette, Indiana, has filed in this court its petition for writ of certiorari, directed to the Appellate Court, ordering that court to certify and send to this court, a full and complete transcript of the record and briefs in cause number 16670, entitled Timothy W. Crowley, as administrator of the estate ofP. Edward Fardy, deceased, et al. v. First Merchants NationalBank of Lafayette, Indiana, et al, in order that said cause may be reviewed and determined by this court and the judgment of the Appellate Court therein reversed.
On May 9, 1942, the Appellate Court reversed the judgment of the trial court in said cause. Crowley et al. v. FirstMerchants National Bank of Lafayette et al. (1942),
In a discussion of the question of common-law writs of 1, 2. certiorari in 10 Am. Jur. § 5, p. 527, we find the following language: *685
"Primarily there are two classes of cases, in which a common-law writ of certiorari will lie: First, whenever it is shown that the inferior court or tribunal has exceeded its jurisdiction; second, whenever it is shown that the inferior court or tribunal has proceeded illegally, and no appeal is allowed or other mode provided for reviewing its proceedings. The petitioner must generally establish either that the proceedings are infected with some fatal irregularity rendering them absolutely void, or that the jurisdiction of the cause did not belong to the tribunal which assumed it but to a different tribunal, or else that the cause is one not within the limits of judicial power. In other words, the inquiry contemplated is as to the power of the court and not the irregularity or correctness of its action . . ."
Even under this broad general statement as to when a common-law writ of certiorari will lie, the petition in this case would have to be denied because here the petitioner has not 3. sought to question the jurisdiction of the court; and by a petition to transfer to this court, as interpreted inWarren v. Indiana Telephone Company (1940),
In Devoss v. Jay, et al (1860),
"The judgment of the Court below, from which the former appeal was taken, was by this Court affirmed. Now another appeal is here from the same judgment, but the record has been perfected since that decision, so as to present points that could not be then considered. This Court then *686 passed upon all points that could be raised upon the record, as the parties chose to submit it. Then was the time to perfect the record, before the judgment of this Court was pronounced. If parties elect to take the opinion of the Court upon an imperfect record, we cannot see where litigation would end, if, by supplying some omitted part of the record, they could again bring another and another appeal from the same judgment. The question whether the record would be a bar to another suit is not before us."
In Warner et al. v. Campbell, et al. (1872),
"It has not been the practice of this court to grant a rehearing that the record may be amended. Such a practice could not be allowed. It is not the practice in any court to allow a new trial or a rehearing, merely that the party may amend his pleadings and present the case in a new form. We should make little progress in the business on the docket of the court, should we allow such a practice."
In its brief, in support of its petition for certiorari, the petitioner states that one purpose of a writ of certiorari is "to insure substantial justice where no other means of review is available." In the instant case the petitioner had another means of review, that is by a petition to transfer. The fact that it did not avail itself of that mode of review would not justify the granting by this court of a writ of certiorari.
In support of its position the petitioner has cited the cases of Brown v. Osborne (1818), 1 Blackford 32, and Bannister v. Allen (1825), 1 Blackford 414. Both of these opinions, however, were apparently speaking of writs of certiorari to supply omissions in the records of *687 appeals which were pending before the court when the petitions for certiorari were filed. A footnote to the opinion in Brown v. Osborne, supra, states:
"It is a general rule, that, at any time pending the writ of error, whether before or after errors assigned, or after in null est erratum pleaded the Court, ex officio, may award a certiorari to inform their conscience, to affirm a judgment, but not to reverse it, or make error."
An investigation of the decisions of this court fails to disclose any decision where this court has resorted to a writ of certiorari as an independent method of reviewing a 4. decision of an inferior court. Our statutes (§ 2-3224, Burns' 1933, § 515, Baldwin's 1934) provide for a writ ofcertiorari by any Appellate Court to any inferior court to procure the records and proceedings of such inferior court "whenever it shall be necessary for the proper determination of any cause or proceeding pending before the Appellate Court." (Our italics.) This statutory writ of certiorari was clearly intended as an aid to the Appellate Court only in appeals pending in the Appellate Court, not as an independent mode of appeal.
In Aetna v. Stryker (1906),
Whether a writ of certiorari could ever be used as an independent method of reviewing the judgment or action of an inferior court in a case where no adequate *688 statutory appeal is available, we need not now decide. In the case now before us the statutory method of review was adequate for the presentation of any question which the petitioner desired to raise.
The fact that this court, subsequent to the decision of the Appellate Court in this case, decided a companion case differently could not affect the decision of the Appellate 6. Court in this case. As we pointed out in Fardy v. Mayerstein (1943),
The motion to dismiss the petition for a writ of certiorari is sustained.
NOTE. — Reported in