DISSENTING OPINION.
[Filed April 30, 1931.] The power of a special judge ordinarily continues until a cause is finally determined, but, if a special judge fails to complete a trial by abandonment of the cause or by refusal or failure to act for an unreasonable length of time, the regular judge has the authority to, and he should, in the manner provided by law, appoint another special judge. This, I believe, is a fair statement of the law and one not necessarily controverted by the opinion of the court herein.
The return of the respondent Wayne Circuit Court (Gustave H. Hoelscher, judge) states that November 8, 1928, was the date set by Special Judge Himelick (who was the judge of the Fayette Circuit Court) for hearing and argument on relator's motion for a new trial therein; that, on said date, both parties were present in the Wayne Circuit Court but said special judge failed to appear. In this return, as in the order which the court made May 28, 1929, providing for the selection of another special judge, the court reviews the history of the case, and shows that said special judge wholly neglected and failed to act on the motion for a new trial on November 8, 1928, or take any other action todispose of the case after that date during the October 1928, January and April 1929 terms of court. The prosecuting attorney, in an affidavit supporting the return, swears that he and his *Page 470 deputy were at all times ready to represent the state in said case, that he endeavored to arrange with relator's attorneys for a date for a hearing on the motion for a new trial, but without success, and that, after the appointment of Special Judge Sparks, Special Judge Himelick, in refusing to sign the records of the Wayne Circuit Court, stated that they were incorrect in "that a motion for a new trial had never been filed with him" although (at the time he announced his finding) the "attorneys for Burke had promised that they would file said motion in a few days" and "that was the reason he did come to Richmond on November 8, 1928, to hear arguments on said motion." (The order-book entry showed the filing of a motion for a new trial at the proper time, but the court's minutes or files did not.)
This is not, as relator contends, "simply a case of a difference of opinion as to how aggressively a special judge should hear and rule on a motion for a new trial," but is a case where the regular judge, from the facts before him, had a right to conclude that the first special judge was not going to take action at all. Certainly, the regular judge was not required, as relator suggests, to seek "a writ of mandamus out of the Supreme Court of Indiana for the purpose of mandating said Special Judge Himelick" to act.
The regular judge, as an administrative duty of his office, is charged with the reasonable expedition of the business pending in his court. Neither litigants nor special judges should be allowed to obstruct or unduly delay the administration of the law. In administering the business of his court, a trial judge must be allowed to exercise his sound legal discretion. I believe there was no abuse of discretion in the action of the judge of the respondent Wayne Circuit Court, but that, by reason of the facts before the court, he was justified in the conclusion that the special judge had abandoned the *Page 471 cause and refused, for an unreasonable length of time, to dispose of it. It follows that the action taken by the Wayne Circuit Court through its regular judge (Hoelscher) was proper, that the new special judge (Honorable Will M. Sparks) was duly and lawfully appointed, and that this court should not set aside the action of the regular judge and prohibit the new special judge from taking further action in the case.
The only authority for the issuance of writs of prohibition by this court is contained in § 1244 Burns 1926. The portion of that statute upon which this action is based provides that "writs of prohibition may issue out of the Supreme Court to . . . circuit . . . courts . . . to restrain and confine such . . . courts . . . to their respective lawful jurisdiction." No one contends that the Wayne Circuit Court does not have lawful jurisdiction of the criminal action pending therein against the relator. The question of whether one special judge of a court or another special judge thereof has the right to act in a particular case is a question which we are not authorized by this statute to consider, but is one which is properly presented only by an appeal.
Also, the new special judge, Sparks, in determining the question of his jurisdiction to act in the case of State v.Burk exercised a judicial discretion and performed a judicial act. A writ of prohibition will issue to confine the subordinate courts "to their respective lawful jurisdictions," and to prevent the encroachment by one court on the jurisdiction of another,State, ex rel., v. Madison Circuit Court (1923), 193 Ind. 20, 138 N.E. 762, but it will not issue to control a court in the exercise of a judicial discretion in determining some matter involving judicial action; it cannot be made to serve the purpose of an appeal by reviewing a judicial decision. State, ex rel., v. Leathers, Judge (1925), 197 Ind. 97, 149 N.E. 900. *Page 472
Even in a case where a writ of prohibition is authorized by the statute, it should be denied if adequate relief can be obtained by appeal, and where a litigant having such an adequate remedy by appeal elects and proceeds to present his question in that manner, he should not be permitted to abandon that course and invoke the aid of the extraordinary writ. It appears from the sworn response filed herein by Will M. Sparks (then judge of the Rush Circuit Court and now judge of the United States Circuit Court of Appeals for the Eighth Circuit) that the relator, upon appearing before him as special judge of the Wayne Circuit Court, objected to his exercising jurisdiction in the case; that, acting as such court (a week later), he decided this question against the relator, who excepted to the ruling. Relator did not thereupon apply to this court for a writ of prohibition but proceeded to argue the motion for a new trial on its merits three weeks later before Judge Sparks. After the court (Sparks) denied relator's motion for a new trial, his attorneys "then and there stated that they desired to appeal the case and to file said petition (for bail) with said higher court," whereupon the court signified that it would not sign the record until July 13, 1929. On that date, relator's counsel "called this affiant (Sparks) on the phone and stated to him that he had consulted with either the Supreme or Appellate Court . . . in relation to filing said application for bond and that he found it would take longer than he anticipated."1 After *Page 473 thus learning that he could not obtain bail until at least seven days after final action by the trial court (Rule 42 Supreme Court), relator commenced this original action and secured the issuance of the temporary writ which (for almost two years) has served to suspend action in the trial court (wherein the cause had already been pending for over a year).
For the several reasons herein stated, I am of the opinion that the temporary writ of prohibition should not have issued, that final action should not have been delayed, and that the writ should have been promptly dissolved.
1 Petitions to be admitted to bail can only be filed "upon sentence being pronounced . . . and judgment thereon . . . entered and an appeal . . . taken or prayed for, and notice of such appeal . . . given as required by law," and the court to which application is made "may require such notice thereof as it deems necessary to be given to the prosecuting attorney . . . or to the attorney-general." § 1, ch. 121, Acts 1929, § 2387 Burns Supp. 1929. In cases where a motion for a new trial is filed, an appeal cannot be taken or notice given of appeal until after action has been taken and recorded on such motion. Seven days' notice of the filing of the application for bail is required by Rule 42 of this court.