Opinion
No. 29,134.
Filed January 11, 1954.
MANDATE AND PROHIBITION — Petition — Allegations — Prima Facie Case. — Where Supreme Court issues a temporary writ of prohibition, it decides on petition that law and facts make out a prima facie case, and the respondents filed no return pursuant to Rule 2-36, Rules of Supreme Court, the court will make a temporary writ of prohibition theretofore issued, permanent. p. 48.
Original action by the Indiana Toll Road Commission, as relator, to prohibit the St. Joseph Superior Court, No. 2, and J. Elmer Peak, as Judge thereof, from proceeding further with a case pending before that court. Temporary writ heretofore issued, made permanent.
Edwin K. Steers, Attorney General, Ralph B. Gregg, Harry T. Ice, and Ross, McCord, Ice Miller, of Indianapolis (of Counsel), for relators.
P.C. Fergus, of South Bend, for respondents.
On December 30, 1953, we issued a temporary writ of prohibition prohibiting respondents from exercising further jurisdiction in a cause entitled "J. Ray Hunt, Plaintiff, v. Albert Wedeking, James D. DeLaurier, Charles B. Enlow, Bruce Short, James Cronin, As Members of The Indiana Toll Road Commission, George N. Craig, Governor, State of Indiana, John Peters, Treasurer, State of Indiana, Defendants," being cause No. 94674 on the records of St. Joseph Superior Court, No. 2. Our temporary writ directed to respondents ordered respondents to show cause, if any, on or before January 6, 1954, why said writ of prohibition should not be made permanent, and said temporary writ was duly served upon respondents on December 31, 1953.
"When we issue a temporary writ of prohibition we thereby decide on the petition that the law and the facts make out a prima facie case for the relief prayed. See State ex rel. Joint County Park Board v. Verbarg (1950), 228 Ind. 280, 286, 91 N.E.2d 916." State ex rel. Gary Rys., Inc. v. Roszkowski, Judge, et al. (1953), 231 Ind. 671, 110 N.E.2d 746.
Respondents have filed no return pursuant to Rule 2-36 showing cause why the writ of prohibition should not be made permanent. The temporary writ of prohibition heretofore issued by this court is therefore made permanent, and the respondents are commanded and directed permanently to refrain from proceeding further or exercising further jurisdiction in any and all matters pertaining to the cause entitled "J. Ray Hunt, Plaintiff, v. Albert Wedeking, James D. DeLaurier, Charles B. Enlow, Bruce Short, James Cronin, As Members of The Indiana Toll Road Commission, George N. Craig, Governor, State of Indiana, John Peters, Treasurer, State of Indiana, Defendants," being Cause No. 94674 on the records of said Saint Joseph Superior Court, Number Two.
NOTE. — Reported in 116 N.E.2d 514.