27 Ind. App. 576 | Ind. Ct. App. | 1901
— Relators file in this court an original petition alleging that at a certain term of the Steuben Circuit Court, Woodhull presided as special judge in an action by
A writ of mandate may issue from this court “only when necessary for the exercise of its functions and powers.” §§1181, 1349 Burns 1901, §§1167, 6565k Homer 1897, Lewis v. Fillion, 4 Ind. App. 105. It will be noticed that the statutes do not authorize a court of appeals to exercise original jurisdiction in mandamus proceedings, but carefully limit its power to issue such a writ where the writ is
The general rule is said to be that an appeal must be pending or the auxiliary jurisdiction of the appellate tribunal can not be successfully invoked, and that this general rule rests upon the principle that until the case is appealed the appellate tribunal has no power to make any order concerning the controversy. In Elliott’s App.. Proc. §507, 'the author says: “If it is within his power to- file the transcript, assign errors and issue notice, he must do so before asking the court to assist him in securing an appeal. After he has done all that he can do unassisted to bring the case into the appellate tribunal, that tribunal will help him by removing obstacles wrongfully placed in his way and by compelling courts and officers to- perform the duties enjoined by law.”
There are necessarily exceptions to the above rule. If the trial court should refuse to take such steps as are necessary to enable the party to secure or to perfect an appeal the appellate tribunal will grant relief. It is manifest that appellate jurisdiction includes the power to assist a party to perfect an appeal by removing obstacles to appeals, and to compel a decision by an inferior tribunal. But the soundness of the rule itself is illustrated in the present case. It is not shown by the petition that the trial court has done anything to prevent the rplators from filing the transcript, assigning errors, and giving notice. Even if the appeal in this case was pending, it would depend upon the errors assigned whether the relators could ask this court to grant the relief prayed for in their petition. If no error should be assigned making the requested bill of exceptions necessary, a writ of mandate directing that a bill be signed would not be necessary for the exercise of the functions and powers of this court. The appellate tribunal in an appealed case has general jurisdiction to determine only such questions as are presented by the assignments of error, and extraordinary aid in a case should not be granted where general jurisdic
The case of State v. Friedley, 151 Ind. 404, was an original action by the prosecuting attorney asking a writ of mandate directing the trial judge to show cause why a motion for a new trial should not be filed and a bill of exceptions signed and made part of the record. The prosecuting attorney had been admitted to defend a suit for divorce, upon the representation that the suit was collusive and the defense by the defendant not in good faith. There was a trial and a decree for plaintiff, and an order that the prosecuting attorney be discharged from further service in the suit, to which order no exception was taken. It is true no appeal was pending, the court declining to decide whether the prosecutor had any appealable interest, and the petition was considered by the court, but the writ was denied upon the ground that the prosecuting attorney, having had his relations to the case cut off before the offer of the motion for a new trial or the tendering of the bill of exceptions, he had no authority to take further steps, and those proposed were entitled to no recognition. In that opinion, the court, after quoting §1181, supra, said: “The functions and powers of this court would be necessarily involved only when, by the failure of the trial judge, the parties would be prevented from perfecting a desired appeal.”
So far as disclosed by the petition there is nothing to prevent the relators filing a transcript, assigning errors, and
The prayer of the petition for the writ is denied.