151 Ind. 404 | Ind. | 1898
The questions herein arise upon demurrer to a petition on behalf of Harry R. McMullen, prosecuting attorney for the Seventh Judicial Circuit, against William T. Friedley, special judge of the Dearborn Circuit Court. It is alleged that the respondent, acting as special judge in the trial of a
In this case his appearance, if authorized by the statute quoted, there having already been a defense, was upon the theory that such defense was not in good faith,—was no defense. The court, having heard the case, upon the evidence, rejected the prosecutor’s defense, and, whatever his legal attitude toward the case, he was expressly discontinued as a representative of the State in that behalf. To this actioh of the court there was no exception, and there can be no question for appeal arising therefrom. Section 626, Horner’s R. S. 1897; Chicago, etc., R. W. Co. v. McBeth, 149 Ind. 78; Lime City, etc., Savings Ass’n v. Black, 136 Ind. 544; Butler v. Thornburgh, 141 Ind. 152; Hedrick v. Whitehorn, 145 Ind. 642; Johnson v. Eberhart, 140 Ind. 210; Fletcher v. Waring, 137 Ind. 159. 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. The bill of exceptions not having been tendered to the judge until after the close of the term, and no time beyond the term having been obtained, it came too late. Section 626, Horner’s R. S. 1897; Marshall v. Beeber, 53 Ind. 83; Whiteworth v. Sour, 57 Ind. 107; Elliott’s App. Pro., sections 800, 801, and authorities there cited.
It may be said, however, that the filing of the motion for a new trial would carry the exceptions over until it was ruled upon. The motion and its grounds not being before us, we cannot say that it was not
An objection to the petition as fatal as any we have stated is that it is not shown that the steps sought to be enforced in the divorce case are with a view to an appeal. The statute expressly provides that the writ of mandate “shall issue from the Supreme Court only when necessary for the exercise of its functions and powers,” section 1167, Horner’s E. S. 1897. 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. The petition is insufficient, and the demurrer is sustained.