DISSENTING OPINION The question presented in this original action arises from the statutory provisions for the issuance of writs of mandate and prohibition out of the Supreme Court and Appellate Court of this state. The statute conferring such original jurisdiction on these courts provides as follows:
". . . Writs of mandate and prohibition may issue out of the Supreme and Appellate Courts of this state in aid of the appellate powers and functions of said courts respectively. Such writs of mandate may issue out of the Supreme Court to the circuit, superior, criminal, probate, juvenile or municipal courts of this state, respectively, compelling the performance of any duty enjoined by law upon such circuit, superior, criminal, probate, juvenile or municipal courts, respectively, including the granting of changes of venue from the county in cases where such change of venue is allowed by law, and timely, proper and sufficient motion and affidavit have been filed therefor, and such change of venue has been refused; and also writs of prohibition may issue out of the Supreme Court to such circuit, superior, criminal, probate, juvenile or municipal courts, respectively, to restrain and confine such circuit, superior, criminal, probate, juvenile or municipal courts, respectively, to their respective, lawful jurisdiction." § 3-2201, Burns' 1946 Replacement, Acts 1881 (Spec. Sess.) *Page 357 ch. 38, § 803, p. 240; 1911, ch. 223, § 1, p. 541; 1915, ch. 87, § 1, p. 207; 1933, ch. 102, § 1, p. 688.
The fact that the statute makes separate provision for writs of mandate and prohibition in aid of the appellate powers of the Appellate and Supreme Courts would indicate a legislative intention that the general provisions for such writs out of the Supreme Court to the trial courts of the state means something different than writs in aid of appellate jurisdiction as provided by the first sentence, else there would have been no necessity for including the Supreme Court along with the Appellate Court in the grant of authority to issue such writs in aid of the appellate jurisdiction. The specific authority in aid of appellate jurisdiction is not included in the general grant to only the Supreme Court.
The trial court in this case should have issued a stay of execution according to the mandate of Rule 2-3 of this court.1 The appeal relators were perfecting was to the Appellate Court, and although the appeal has not been perfected by the filing of the transcript and assignment of errors as provided by the rules of this court concerning appeals, yet the appeal had been initiated in the trial court, and, "The pendency of an appeal is not necessary, however, to an exercise of jurisdiction in aid of an appeal . . ." State ex rel. M. T.Ins. Co. v. Buente, Judge (1936), 210 Ind. 432, 433,3 N.E.2d 977. This well recognized principle is often employed by the Supreme Court when it issues a stay of execution of sentence of death before the *Page 358 transcript and assignment of errors has been filed with the clerk of this court.
If after the appeal had been perfected a supersedeas had been sought, it could only be issued out of the Appellate Court in this case in conformity with Rule 2-3 of this court. It is difficult to see why a different court should take jurisdiction to compel the issuance of the stay when a writ of mandate is sought before the perfection of the appeal. Reasons of policy and comity indicate that this was the intention of the legislature, and in the interest of the orderly administration of justice appellants should be required to obtain their writs of mandate and prohibition in aid of appellate jurisdiction from the court which would have jurisdiction of the appeal, which in this case is the Appellate Court.
NOTE. — Reported in 80 N.E.2d 110.
1 ". . . Enforcement of a judgment will be suspended during an appeal upon the giving of an adequate appeal bond with approved sureties. Prior to the filing of the transcript for appeal such bond shall be fixed and approved and the order of stay issued by the trial court or the judge thereof in vacation; thereafter by the appellate tribunal." Rule 2-3.