Opinion
No. 29,953.
Filed November 22, 1960.
MANDAMUS AND PROHIBITION — Change of Venue from Judge — Moot Question. — Where it appears that the remedy sought by the writ of mandamus, a change of venue from the judge, has been granted, the issue presented by this proceeding for writ of mandamus and prohibition is now moot and the alternative writ heretofore issued is now dissolved and permanent writ denied.
Original action by the State of Indiana on relation of Robert F. Garber, relator, which seeks a writ of mandamus and prohibition against Kosciusko Circuit Court, Seth E. Rowdabaugh, Judge thereof, respondents, to compel respondent to grant relator's affidavit for change of venue from the judge. An alternative writ was issued. Alternative writ heretofore issued is dissolved and permanent writ denied.
Solly K. Frankenstein and Richard Ver Wiebe, both of Fort Wayne, for relator.
Seth E. Rowdabaugh, pro se.
This is an original action on a petition for writ of mandamus and prohibition against the Kosciusko Circuit Court of Kosciusko County, Indiana, and Seth E. Rowdabaugh, regular judge thereof. Relator avers that on the 4th day of May 1960, in cause No. 5470 pending in the Kosciusko Circuit Court entitled State of Indiana v. Robert F. Garber, there was filed on behalf of such named defendant, an affidavit for a change of venue from the judge of said court on account of the bias and prejudice of said judge against said defendant.
That on that date the respondent judge overruled defendants affidavit for change of venue from the judge and set the cause for arraignment on May 25, 1960.
On May 14, 1960, an alternative writ of mandate and prohibition was issued by this court, ordering the respondent to grant the change of venue filed by the defendant in cause No. 5470, and further ordering the respondent to refrain from proceeding further or exercising jurisdiction in said cause or to show cause on or before June 3, 1960, why such writ should not be made permanent.
Respondent filed return to such writ on June 2, 1960, showing that on May 25, 1960, defendant's motion and affidavit for change of judge was resubmitted, said motion granted and a panel submitted for striking to select a special judge in said cause.
It now appearing that the remedy sought by the writ has been granted, and that the issue presented by this proceeding is now moot, the alternative writ heretofore issued is now dissolved and a permanent writ denied.
Arterburn, Achor, Bobbitt and Landis, JJ., concur.
NOTE. — Reported in 170 N.E.2d 370.