Opinion
No. 29,957.
Filed November 22, 1960.
1. MANDAMUS AND PROHIBITION — Failure of Respondent to File Response or Brief — Searching Record. — In this proceeding for writ of mandamus and prohibition, the respondent has not filed any response or brief and the Supreme Court cannot assume the responsibilities and duties of adverse counsel and search the record for reasons why the relief sought should not be granted. p. 132.
2. MANDAMUS AND PROHIBITION — Failure of Respondent to File Return or Brief — Prima Facie Case. — In this proceeding for writ of mandamus and prohibition, the respondent has not filed any response or brief and since the relator has made a prima facie showing which entitles him to the relief sought, the temporary writ of prohibition heretofore issued is made permanent. p. 133.
Original action by the State of Indiana on relation of Edwin K. Steers, Attorney General, relator, seeking a writ of prohibition against Superior Court of Marion County, Room 1, Walter Bell, Judge thereof, respondent. A temporary writ of prohibition was issued. Temporary writ of prohibition made permanent.
Edwin K. Steers, Attorney General and Richard C. Johnson, Deputy Attorney General, for relator.
This original action for writ of prohibition arises from the action of the Superior Court of Marion County, Room 1, in attempting to assume jurisdiction of a purported appeal from a decision of the Indiana State Personnel Board sustaining the action of the Evansville State Hospital in discharging from employment one Eunice Power. In the court below and in this court the relator, as Attorney General of Indiana opposed the "appeal" on the following grounds:
1. That the pleading filed in the trial court was not verified as required by the Administrative Adjudication and Court Review Act [§ 63-3014, Burns' 1951 Repl., being Acts 1947, ch. 365, § 14, p. 1451].
2. That the appellant below does not aver that she is a resident of Marion County or that the order of determination was to be carried out and enforced in Marion County and that therefore the Marion County Superior Court has no jurisdiction. [Burns' § 63-3014, supra.]
3. That no certified copy of the transcript was filed by the clerk of such court within 15 days as required by the statute. [Burns' § 63-3014, supra.] White v. Bd. of Med. Regis. and Exam. (1956), 235 Ind. 572, 134 N.E.2d 556; City of Plymouth v. Stream Pollution Cont. Bd. (1958), 238 Ind. 439, 151 N.E.2d 626.
The respondent, Special Judge, and those adverse to the petitioner herein, filed no response, brief, or objections of any kind opposing the granting of either the temporary or 1. permanent writ herein and are in default. It is to be regretted we have not had the benefit of the opposing views, if any, in this matter. This court cannot, however, assume the responsibilities and duties of adverse counsel, and search the record for reasons why the relief sought should not be granted. State ex rel. Wolfal etc. v. Rush C.C. et al. (1955), 234 Ind. 650, 651, 130 N.E.2d 460, 461; State ex rel. Toll Rd. Comm. v. St. Joseph S.C. etc. (1954), 233 Ind. 47, 116 N.E.2d 514; Walls, et al. v. State, ex rel. Mallott, Auditor of Lawrence Co., et al. (1894) 140 Ind. 16, 38 N.E. 177.
For the reason that a prima facie showing has been made which 2. entitles the relator to the relief asked, the temporary writ is made permanent.
Jackson, C.J. and Bobbitt, Landis and Achor, JJ., concur.
NOTE. — Reported in 170 N.E.2d 369.