29 N.E.2d 991 | Ind. | 1940
This is an original action seeking a writ of prohibition against the respondent, prohibiting him from acting as special judge in the Blackford Circuit Court in a cause in which Urban T. Bonifas is plaintiff and the Sun Publishing Company is defendant. Upon the filing of the petition, a temporary writ issued.
It appears that the plaintiff, Bonifas, brought an action against the Sun Publishing Company in the Jay Circuit Court in which the plaintiff asked for the appointment of a receiver. The return on the summons *641
shows that it was served by reading "to Malcolm V. Skinner, Secretary of Sun Publishing Co. Arthur Lee Manager Sun Publishing Company," and Roscoe D. Wheat and Clyde N. Chattin entered an appearance for the Sun Publishing Company. The venue was thereafter changed to the Blackford Circuit Court, and, in proper proceedings, the respondent was selected as special judge. Thereafter E.A. Fulton and Wheeler Ashcraft, claiming to be President and Secretary-Treasurer, respectively, of the Sun Publishing Company, filed in the Jay Circuit Court, in the name of the Sun Publishing Company, a verified motion to set aside and vacate the order granting a change of venue from that county, upon the ground that they were the officers of the company, and that the persons served with the summons in the case were not officers of the company; that the attorneys who appeared for the company had no authority to appear; and that the court had acquired no jurisdiction of the person of the Sun Publishing Company. Their petition was denied, and the judgment was affirmed by the Appellate Court, upon the ground that jurisdiction of the subject-matter of the petition was in the Blackford Circuit Court. See Sun Publishing Co. v. Bonifas (1939),
The change of venue statutes all provide for a change of judge upon the application of a party, and it is settled that one must be a party to an action in order to be entitled to a change 1. of judge. See Sherry et al. v. Denn, etc. (1847), 8 Blackf. 542; State ex rel. Mabbitt v. Smith (1877),
But the question pending in the court below is not whether the Sun Publishing Company, a party to the action, is entitled to a change of judge, but whether the Sun Publishing Company is 2. seeking a change of judge. This question is merely incidental, and may be determined by the trial court in a summary manner. No rational rule will require that a change of judge be granted on the motion of the Sun Publishing Company before it is determined that the Sun Publishing Company, speaking by some one authorized *643 to speak for it, has asked for a change of judge. Such a practice would tend to unduly interfere with orderly procedure. It is not authorized by the statute or by the decisions.
The temporary writ of prohibition is dissolved and a permanent writ denied.
NOTE. — Reported in