30 Ind. App. 502 | Ind. Ct. App. | 1903
The relator applies to this court for a writ of mandate requiring appellee, as judge of the Huntington Circuit Court, to make his ruling on a motion for a new trial, and to render final judgment in a certain action pending in that court. It appears that in March, 1902, the relator filed an application in the Huntington Circuit Court to have a certain person declared of unsound mind. The case was submitted to a jury for trial on April 2, 1902, and two days thereafter, the jury having been unable to agree, was discharged. On the 26th day of June, 1902, the case was again submitted to a jury, and on the next day re
It was held in Studabaker v. Markley, 7 Ind. App. 368, that in an application to have a person adjudged of unsound mind, where the finding is that the person charged is not of unsound mind, the proceeding is at an end, and no appeal from such a determination is contemplated or can be allowed.
The motion for a new trial, which is made a part of the application, presents questions which go to the merits of the appeal only. Should the motion be overruled, and an appeal taken, we could review none of the questions presented by the motion. As this court is authorized to issue a writ of mandate “only when necessary for the exercise of its functions and powers” (§§1181, 1349 Burns 1901; State, ex rel., v. Woodhull, 27 Ind. App. 576), it could not issue the writ in any case that is not appealable. As we could not review the merits, we can not issue the writ to aid in perfecting an appeal upon the merits.
This leaves only the question of a right to appeal upon the matter of costs. But we fail to see how the question of costs can be reviewed without reviewing the merits of the case, for the reason that the statute expressly directs that “if the court or jury find that such person is not of unsound mind, then the court shall give judgment against the person making the complaint for the costs.” §2Y18
Where the proceeding has been tried, and the jury has found that the person charged is not of unsound mind, the costs must be adjudged against the complaining party according to the plain mandate of the statute. Whether the costs were correctly adjudged could be determined only from reviewing the. action of the jury in making the finding. Moreover, it is held in Manlove v. State, 153 Ind. 80, that “An appeal will not be entertained simply to determine who shall pay the costs in the trial court.”
The alternative writ is denied.