State Ex Rel. Steers, Etc. v. Hancock Cir. Court, Etc. , 232 Ind. 384 ( 1953 )

Gilkison, J.

In this original action it is alleged that the state brought its proceeding in respondent court against 11,000 cases, more or less, of canned tomatoes and 7,000 cases, more or less, of canned tomato juice, for libel for the condemnation and destruction thereof under the “Uniform Indiana Food, Drug, and Cosmetic Act”, §§35-3101 to 35-3138, Burns’ 1949 Replacement, inclusive. The action was filed on March 17, 1952.

On March 28, 1952 Virgil Etchison, who had been served with a copy of process by order of the court, made at plaintiff’s request, appeared by his attorneys VanDuyn and Bachelder and filed answer, admitting certain averments of the complaint and denying all others, and claimed the ownership of the canned goods described, agreeable with §35-3125, Burns’ 1949 Replacement.

The cause was tried by jury, which returned a verdict for the defendant on March 13, 1953 and the jury was thereupon discharged. On March 14, 1953 the plaintiff filed its motion to stay the entry of. the order to the sheriff to return the merchandise to the owner until it had an opportunity to file its motion for new trial (within thirty days) and to appeal from any adverse ruling thereon. On April 8, 1953, plaintiff filed its motion for new trial, among other causes therefor were No. 6 and No. 7, as follows:

“6. The Court erred in not taking the case from the jury and in not rendering judgment on the evidence for plaintiff or claimant at the close of all of the evidence after the following plaintiff’s and claimant’s motions for directed verdicts were made at the conclusion of all evidence and before argument:

‘And now, the State of Indiana, at the close of all the evidence and before argument of counsel hereby moves the court to direct the jury to find for the plaintiff, State of Indiana.

‘Ruling of the Court: The Courí being duly advised in the premises now overrules said Motion of the plaintiff.

‘The Claimant at the close of all the evidence and before the argument of counsel hereby moves the court to direct the jury to find for the claimant.

‘Ruling of the Court: The Court being duly advised in the premises now overrules said motion.’ ”

“7. The Court erred in overruling plaintiff’s motion for a directed verdict which motion was made after the claimant’s motion for a directed verdict at the conclusion of all evidence and before argument and before the Court’s ruling thereon which motions for directed verdicts of the plaintiff and claimant and the Court’s rulings thereon were as follows:

‘And now, the State of Indiana, at the close of all the evidence and before argument of counsel hereby moves the court to direct the jury to find for the plaintiff, State of Indiana.

‘Ruling of the Court: The Court being duly advised in the premises now overrules said Motion of the plaintiff.

‘The Claimant at the close of all the evidence and before the argument of counsel hereby moves the court to direct the jury to find for the Claimant.

‘Ruling of the Court: The Court being duly advised in the premises now overrules said motion.’ ”

Thereafter, on May 16, 1953, the respondent court rendered its final judgment as follows:

“The Court being duly advised in the premises now considers the verdict of the jury herein as advisory only and in no other way; and the Court being duly advised in the premises now, as his own finding, finds for the defendant, 11,000 cases, more or less of canned tomatoes, and 7,000 cases, more or less of canned tomato juice and that the contents of the cans of tomatoes detained and embargoed in this proceeding are not adulterated and that the contents of the cans of tomato juice detained and embargoed in this proceeding are not adulterated, and that the plaintiff shall recover nothing of the defendant in this proceeding and that the claimant, Virgil Etchison, is the owner of said cans of tomatoes and tomato juice.

“It is therefore decreed and adjudged by the Court that the plaintiff recover nothing from the defendant in this proceeding and that the contents of the cans of tomatoes detained and embargoed in this proceeding are not adulterated and that the contents of the cans of tomato juice detained and embargoed in this proceeding are not adulterated and that the claimant, Virgil Etchison, is the owner of said cans of tomatoes and tomato juice and the Court now orders and directs the Sheriff of Hancock County, Indiana to return to said Virgil Etchison, free of any libel on seizure said cans of tomatoes and said cans of tomato juice. And the Court now denies and overrules plaintiff’s motion for a new trial herein and the plaintiff is given an exception to said ruling of the court.”

On the same date, May 16, 1953, plaintiff withdrew its motion to stay proceedings filed on March 14, 1953.

On the same date, May 16, 1953, plaintiff filed its written motion to stay all further proceedings, without bond, pending appeal of the action “to the appellate or supreme court”, which motion was overruled on May 21, 1953.

The prayer of relator’s petition so far as it can be considered in this proceeding, is that an alternative writ of mandate issue, (1) requiring respondents to set aside and remove from the record the finding and judgment; (2) to rule upon the motion for new trial filed on April 8, 1953; (3) to grant relator’s motion to stay all proceedings in the action; and (4) to set aside the order overruling the motion to stay all proceedings in the action made on May 21, 1953, and asking for a permanent writ.

We issued the alternative writ.

This court’s jurisdiction is fixed by the state constitution, Art. 7, §4. By this section of the constitution we have “such original jurisdiction as the General Assembly may confer.” So far as the matters presented in this case are concerned, the General Assembly has conferred original jurisdiction upon us in mandate, thus:

“. . . Such writs of mandate may issue out of the Supreme Court to the circuit . . . courts of this state, . . . compelling the performance of any duty enjoined by law upon such .. . courts .. . §3-2201, Burns’ 1946 Replacement.

The duty of this court in original actions for mandate is well stated by Hughes, J. thus:

“The writ of mandamus is a proper one to compel judicial action and to compel courts to act where they refuse to act and ought to act, but not to direct and control the judicial discretion to be exercised in the performance of the act to be done; to compel the court to hear and decide where they have jurisdiction, but not to predetermine the decision to be made; to require them to proceed to judgment, but not to fix and prescribe the judgment to be rendered.” State ex rel. Benson v. Superior Court (1933), 205 Ind. 464, 468, 187 N. E. 203. State ex rel. Dayton, etc. Co. et al. v. Board of Comm’rs of Tippecanoe Co. (1892), 131 Ind. 90, 93, 30 N. E. 892. State ex rel. Vonderschmidt v. Gerdink (1946), 224 Ind. 42, 44, 64 N. E. 2d 579. State ex rel. Burton v. Gelb (1947), 225 Ind. 330, 334, 75 N. E. 2d 151.

By its complaint filed in respondent court, the state asked the court to hear and try the issues it presented or that might be joined in the action, and to render a judgment in its favor and order the sheriff to destroy the merchandise, and for the costs of the action. It does not complain in this action that the court either failed or refused to try the action agreeable with the law. Its complaint is that the finding and judgment are erroneous.

The respondent court had jurisdiction and a duty to try and determine the issues joined. That result is the purpose of the action. We cannot in this original action, pass upon the questions, whether or not the determination of the trial court concerning the issues joined or the questions presented were correct or erroneous. We can determine such questions only on appeal. As in the original action of prohibition, the original action of mandate which this court is authorized to entertain, cannot be used as a substitute for appeal. State, ex rel. v. Wrigley, Judge (1918), 187 Ind. 78, 81, 118 N. E. 353. State, ex rel. v. Jackson (1907), 168 Ind. 384, 386, 81 N. E. 62. Paddock, Mayor v. State, ex rel. (1916), 185 Ind. 650, 651, 114 N. E. 217. State ex rel. City of Indianapolis et al. v. Brennan, Judge et al. (1952), 231 Ind. 492, 109 N. E. 2d 409, 412. State ex rel. Darkness v. Gleason (1918), 187 Ind. 297, 119 N. E. 9. Board of Commissioners of Jasper County v. Spitler (1859), 13 Ind. 235, 240. State ex rel. Wheeler v. Leathers, Judge (1925), 197 Ind. 97, 104, 149 N. E. 900. State ex rel. Feeney v. Superior Court (1934), 206 Ind. 78, 82, 188 N. E. 486, dissent Myers, J. State ex rel. McGarr v. DeBaun, Judge (1926), 198 Ind. 661, 673, 154 N. E. 492, dissent Willoughby, J. State ex rel. Allman v. Grant Superior Court (1939), 215 Ind. 249, 19 N. E. 2d 467. State ex rel. Gannon v. Lake Circuit Court (1945), 223 Ind. 375, 379, 61 N. E. 2d 168. State ex rel. Wever v. Reeves (1951), 229 Ind. 164, 168, 96 N. E. 2d 268.

By its complaint relator required respondent court to make its finding and render a judgment. This respondent court has done, and this court is without power, in this proceeding, to order respondents to set aside and remove the finding and judgment from the record. The order of respondent court heretofore copied, shows that it overruled relator’s motion for new trial on the same date and in the same record and rhetorical paragraph as the rendition of the judgment. The relator is not entitled to have it ruled upon again. As before shown the record shows that relator’s petition to stay all proceedings in the action, filed on May 16, 1953, was overruled by the respondent court on May 21, 1953. Relator complains only of the nature of respondent’s ruling thereon. It was respondent’s duty either to sustain or overrule this motion. Respondent has performed this duty. Whether the ruling was correct or was error we cannot decide in this proceeding.

Relator complains that respondent judge erred in treating the jury’s verdict as advisory only, and making his own finding. Since that action was suggested to the respondents by relator’s reasons for new trial Nos. 6 and 7, filed and presented eight days .before the action complained of was taken by the respondent judge; and further since the finding of the respondent judge is in complete agreement with the jury’s verdict, we doubt if relator is in a position to question this action even on appeal. Clearly this action of the respondent judge presents nothing for our consideration in this original action.

The several questions attempted to be presented by relator may be passed upon by this court only on appeal.

For the reasons given the alternative writ heretofore issued is revoked and a permanent writ is denied. Emmert, J., dissents in which Draper, J., concurs.