Opinion
No. 29,495.
Filed February 4, 1957.
1. MANDAMUS AND PROHIBITION — Petition — Return — Certified Copies. — Where in divorce action relator filed motion for change of venue and the court set hearing on application for support and suit money, and relator then filed answer in abatement to complaint and also filed written objections to the court hearing the application for suit money, if the court made any interlocutory order for support and suit money it should be set out by way of certified copy. p. 296.
2. MANDAMUS AND PROHIBITION — Change of Venue from Judge — Divorce — Application for Temporary Support and Suit Money. — Where change of venue has been filed and called to attention of judge it is his duty to follow Rule 1-12. While interlocutory orders of an emergency nature can be made pending completion of change, no such emergency is shown here involving right to change pending an interlocutory application for support and suit money. p. 296.
3. MANDAMUS AND PROHIBITION — Annulment of Marriage — Divorce — Expunging Court Record. — Where relator filed an action for annulment after his wife filed action for divorce, and in such annulment action, filed motion for change of judge, but no court action is shown thereon, the alternative writs of mandate and prohibition issued thereon should be vacated. Since the record court entries fail to show cause for expungement, the alternative writ of mandamus issued in the divorce action should also be vacated. p. 297.
Original action by Ira Cornett, relator, for writs of mandamus and prohibition and an alternative writ of mandate and temporary writ of prohibition was issued directed to the Dearborn Circuit Court and Lester G. Baker, Judge.
Alternative writs of mandate in both divorce and annulment actions vacated, temporary writ of prohibition in annulment case vacated and temporary writ of prohibition made permanent in divorce action.
T. Ernest Maholm, of Indianapolis, for relator.
James T. Hooper, Sr., of Lawrenceburg, for respondents.
This is an original action for an alternative writ of mandamus and a temporary writ of prohibition, and on the verified petition we issued an alternative writ of mandamus and a temporary writ of prohibition. The verified return does not plead any certified copies of the trial court pleadings, orders and entries so it presents nothing in addition to the certified copies presented by the petition.
On October 29, 1956, Evelyn Cornett filed her complaint for divorce, and support and suit money pending the action, Cause No. 12,766, on which summons was issued returnable January 8, 1957. On November 5, 1956, relator filed motion for change of venue from the judge and notice of service on the wife's counsel. On November 9, 1956, the court set a hearing on the application for support and suit money for November 13, 1956, and the relator also filed an answer in abatement in two paragraphs. On November 13, 1956, relator filed written objections to the Honorable Lester G. Baker, sole judge of the Dearborn Circuit Court, hearing the application for support and suit money pending the action. The petitioner then fails to show any further action by the court.
If the trial court made an interlocutory order for support and suit money pending the action for divorce, such would be a matter of record which should be brought here by certified copy. 1. State ex rel. Wall v. Cass Circuit Court (1954), 233 Ind. 192, 117 N.E.2d 126.
When the motion for the change of judge was called to the attention of the judge, it was his duty to follow the procedure set forth in Rule 1-12, and the trial judge lost 2. jurisdiction to do more than follow Rule 1-12. State ex rel. Ballard v. Jefferson Circuit Court (1947), 225 Ind. 174, 73 N.E.2d 489; State ex rel. Gmil v. Markey, Judge (1951), 230 Ind. 68, 101 N.E.2d 707. There was no such emergency that required the regular judge to continue jurisdiction pending the completion of the change. When a change of venue from the county is had there would be danger of a considerable jurisdictional hiatus if we were to hold the court of origin lost jurisdiction to make interlocutory orders of an emergency nature when a change of venue from the county is granted. There would be a time when no court could exercise jurisdiction. But Pry v. Pry (1947), 225 Ind. 458, 469, 75 N.E.2d 909 and Vogel v. Chappell, Trustee (1937), 211 Ind. 310, 6 N.E.2d 953, recognizing the right of a court to make interlocutory orders in divorce and receivership proceedings before the transcript and papers are sent to the county to which the venue has been changed, are not analogous to the issues in the original action at bar involving the right to a change of judge pending an interlocutory application for support and suit money. See Stair v. Meissel (1934), 207 Ind. 280, 292, 192 N.E. 453.
Relator on November 3, 1956, filed an action against his wife for annulment of the marriage. In this cause, No. 12,768, he filed a motion for change of judge, but no court action is 3. shown as to this motion. The writ should be vacated as to this action.
Since the record court entries fail to show any cause for expunging any court record in cause No. 12,766 for divorce, the alternative writ of mandamus should be vacated.
Both writs are vacated as to cause No. 12,768 for annulment of the divorce.
The alternative writ of mandamus is vacated in cause No. 12,766 for divorce, but the temporary writ of prohibition is now made permanent in this cause.
Achor, C.J., Arterburn, Bobbitt and Landis, JJ., concur.
NOTE. — Reported in 140 N.E.2d 101.