State Ex Rel. Durham v. Marion Circuit Court

Arterburn, C. J.

The relator has petitioned this court for a writ of prohibition and mandate against the above named respondent court to vacate and set aside a judgment entered by that court on August 31, 1959 in a proceeding entitled State of Indiana, Ex Rel., Davis M. Shryer, Relator, vs. Lester R. Durham, as a County Commissioner of Marion County, Cause No. C59-177 and a subsequent Cause No. X59-57. That was a cause of action in the trial court on an Information and Petition for the removal of Lester R. Durham as a member of the Board of Commissioners of Marion County.

The petitioner contends the trial court did not have jurisdiction for a number of reasons. The statute under which the special proceedings were brought for removal of the County Commissioner reads as follows:

“Malfeasance, accusation, hearing, judgment.— When an accusation in writing, verified by the oath of any person, is presented to a circuit court, alleging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered, or to be rendered, in his office, or has refused or neglected to perform the official duties pertaining to his office, the court must cité the party charged to appear before the court at any time not more than ten [10] nor less than [5] days from the time the accusation was presented; and on that day, or some other subsequent day not more than twenty [20] days from the time the accusation was presented, must proceed to hear, in a summary manner, the accusation and evidence offered in support of the same, and the answer and evidence offered by the party accused ; and if, on such hearing, it appears that the charge is sustained, the court must enter a decree that the party accused be deprived of his office, and must enter a judgment for five hundred dollars [$500] in favor of the prosecuting officer, and such costs as are allowed in civil cases. [Acts 1897, ch. 182, §35, p. 278.]” Burns’ §49-836, 1951 Repl.

The relator claims the necessary five days did not elapse “from the time the accusation was presented” to the day the relator herein was cited to appear. The citation to appear was issued on August 26, 1959 for Durham to appear on August 31, 1959.

Burns’ §2-4704 reads as follows:

“Computation of time — The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded. [Acts 1881 (Spec. Sess.), ch. 38, §849, p. 240.]”

Since the statute makes no reference to calculations of fractional parts of the day and there is no evidence here when, on August 26th “the accusation was presented,” we have no grounds for holding that less than five days elapsed. The relator points to the record which shows that the citation was received in the sheriff’s office at 1:41 p.m. on August 26th. This, however, is no evidence of when the accusation “was presented” in court and the point from which the time begins to run. We hold there is no showing made that less than the statutory period of five days had run at the time the relator Durham was cited to appear.

The relator next urges that although there was a general appearance of an attorney, De Vaughn Hodges, for Lester R. Durham in the trial court, he thereafter withdrew his appearance, and the present attorneys entered a special appearance to contest the jurisdiction of the court; that without the issuance of a summons and no general appearance by the relator (defendant below), the trial court acquired no jurisdiction personally of the relator.

Such a contention results from a failure to distinguish between the withdrawal of an attorney’s appearance in the case and the appearance of a party to the action. It is true that if a party withdraws his appearance with the permission of the court, the court loses jurisdiction of that party, and all pleadings of the party go out also, as stated in American Steel, etc., Co. v. Carbone (1915), 60 Ind. App. 484, 109 N. E. 220. However, the same result does not follow where an attorney merely withdraws his own appearance as representing a party, while the party still remains in the cause and for whom substitute attorneys appear. In such a case there is no loss by the court of jurisdiction over the party. A change in attorneys pending the litigation does not cause a loss of personal jurisdiction over a party. Likewise the withdrawal of an attorney for a party does not affect the jurisdiction over the party. In this case the record is clear that De Vaughn Hodges withdrew his personal appearance as an attorney and not the appearance of Durham as a party to the action. 5 Am. Jur., Attorneys at Law, §§83-85, pp. 310-312.

Where an attorney appears there is a rebuttable presumption that he has authority to enter an appearance for a party and represent the party until his authority is challenged and evidence introduced to the contrary. There is no challenge made here so far as the record shows, as to the authority of De Vaughn Hodges to appear for Durham. There was no evidence introduced showing he had no authority to enter a general appearance. Neff v. City of Indianapolis (1935), 209 Ind. 203, 198 N. E. 328; Castle v. Bell et al. (1896), 145 Ind. 8, 44 N. E. 2; Gatewood v. Board of Comrs. of Hamilton Co. (1949), 119 Ind. App. 297, 86 N. E. 2d 298; Vail v. Dept. of Financial Institutions (1938), 106 Ind. App. 39, 17 N. E. 2d 854; Bush v. Bush et al. (1874), 46 Ind. 70; 7 C. J. S., Attorney and Client, §72, p. 874; Anno. 88 A. L. R. 12.

This forecloses any question as to jurisdiction, including such as pertains to the filing of a second paragraph of Information on the day of the hearing. No plea of abatement was filed. Any denial for a request for a continuance to prepare for trial would be a matter for an appeal — not a question of jurisdiction in a petition for a writ of prohibition in this Court. State ex rel. Bev. Shores H. Corp. v. Fleishbein, J. (1953), 232 Ind. 549, 114 N. E. 2d 662; State ex rel. v. Brennan, Judge (1952), 231 Ind. 492, 109 N. E. 2d 409.

The relator has had inserted in this record a statement certified to by the clerk that the Hon. John L. Linder, Judge pro tern, was presiding in vacation on August 31, 1959 and urges upon us that he was the duly qualified and acting Judge pro tern for the Marion Circuit Court on that day and that the regular judge, the respondent herein, had no authority to hold the hearing in question on the same day. Although there may be some question as to the method by which it is attempted to raise this question through the record before us here, no question was raised as to his jurisdiction in that particular at the time. Under Rule 2-35 the record must show that such question has been specifically called to the attention of the trial court and such trial court been given an opportunity to rule thereon before it may be presented to this court. Practically the same question was before this Court in State ex rel. Crowmer et al. v. Sup. Ct., M. Co. et al. (1958), 237 Ind. 633, 146 N. E. 2d 88, where it was decided adversely to relator. Book v. State Office Building Commission (1958), 238 Ind. 120, 149 N. E. 2d 273; 22 I. L. E., Officers, §5, p. 202.

For the same reason, we must ignore the contention that the prosecuting attorney is the only proper person to institute the proceedings for removal in the trial court below, since that point was not raised nor called to the attention of the trial court before it was presented to us.

There is one other unusual feature to this case which we should not overlook, namely, that the record shows there has been a final determination and judgment entered in the case below, and there is nothing further pending before the respondent court to restrain or prohibit.

.Burns’ §49-833, 1951 Repl. provides for appeals from a judgment of removal to the Supreme Court after judgment. Writs of mandate and prohibition should not be confused with appeals on their merits.

In this original action the Supreme Court can do no more than decide whether the respondent court exceeded its lawful jurisdiction. We have no power to review any alleged errors of discretion or judgment in the trial court in the action before it. Far too frequently writs of prohibition or mandate in this court are sought to be used as a short-cut to an appeal on the merits. This cannot be done. We can only determine here whether or not the trial court had the authority and jurisdiction to act — not whether it made a mistake in judgment. If the trial court erred in a ruling, it does not thereby lose jurisdiction. An appeal is the proper remedy for the correction or review of any such alleged error of the trial court, so long as it is acting within its general limits of jurisdiction. State ex rel. Allison v. Criminal Court of Marion County (1958), 238 Ind. 190, 149 N. E. 2d 114; State ex rel. Sims v. Hendricks C. C. et al. (1956), 235 Ind. 444, 134 N. E. 2d 211; State ex rel. Collins v. Lake Superior Ct., et al. (1954), 233 Ind. 536, 121 N. E. 2d 731.

The special proceedings in a trial court provide for a summary action upon the issuance of the citation, and the rules of civil procedure have been held to be inapplicable to a proceeding of that nature. State v. Perry Circuit Court (1933), 204 Ind. 673, 185 N. E. 510; Beesley v. State (1941), 219 Ind. 239, 37 N. E. 2d 540.

The trial court here had jurisdiction of the parties, the subject matter and the case.

The petition for writ of prohibition and mandate is denied.

Bobbitt and Landis, JJ., concur. Achor, J., not participating in final opinion, because of illness. Jackson, J., dissents with opinion.