State Ex Rel. Lukemeyer v. Sumner, Judge

An alternative writ of mandamus issued from this court directed to the Honorable John L. Sumner, Judge of the Dubois Circuit Court of Indiana, the mandate of the writ being as follows:

"Therefore, it is now ordered that John L. Sumner, Judge of the Dubois Circuit Court of Indiana, be and appear at Room No. 316 at the State House, Indianapolis, Indiana, on the 19th day of September, 1932, at 2:00 P.M. and show cause, if any there be, why he should not grant a change of venue on the application of relator, Citizens Trust Company, for a change of venue from himself on the hearing of the final report and exceptions thereto set for August 15, 1932, and that the said John L. Sumner be prohibited and restrained from further exercise of jurisdiction in said matter until the further order of this court."

The question presented by this original action is whether, under Acts of 1929, ch. 6, p. 12, § 443, Burns Ann. Ind. St. Supp. 1929, a receiver is entitled to a change of venue for a hearing upon his final report when exceptions thereto have been filed. The question was thoroughly discussed in oral argument and both parties have filed comprehensive briefs. We are of the opinion that the act in question must be construed to cover a hearing wherein the issues consist of exceptions to a final report of a receiver of an insolvent. We do not see how the following language of the act can be construed otherwise:

"When any matter of a civil, statutory or equitable nature not triable by a jury, is pending, the judge before whom said cause is pending shall change the venue thereof upon the application of either party to such cause, made upon affidavit, of either party or his attorney, showing any one or more of the reasons named in the statutes of this state authorizing changes of venue from the judge in civil actions. And the presiding judge shall make an appointment of a special judge to hear such cause in the manner provided by law for changes of venue in civil actions."

The mandate of the alternative writ of mandamus was confined to the single point of change of venue from the judge on the hearing of the final report of the receiver. As thus limited the alternative writ is made absolute.

The respondent, the Honorable John L. Sumner, Judge of the Dubois Circuit Court, is hereby directed to grant relator's application for a change of venue from himself as Judge of the Dubois Circuit Court in the matter of the hearing on the exceptions to the final report of relator as receiver.