Opinion
No. 29,006.
Filed March 9, 1953.
1. PROHIBITION — When Supreme Court Issues Temporary Writ of Prohibition It Decides That A Prima Facie Case Is Made. — When the Supreme Court issues a temporary writ of prohibition it thereby decides on the petition that the law and the facts make out a prima facie case for the relief prayed. p. 670.
2. PROHIBITION — Failure of Respondents To File Return To Writ of Prohibition — Writ Made Permanent. — Where respondents filed no return, pursuant to Rule 2-36, showing cause why the writ of prohibition should not be made permanent, the writ heretofore issued by the Supreme Court is made permanent, and the lower court is ordered to expunge restraining order from its records. p. 670.
Original action by the State of Indiana, on the relation of Gary Railways, Inc., against Anthony B. Roszkowski, Judge of the Lake Superior Court, Room 4, for a writ of prohibition on a cause of action entitled City of Gary v. Gary Railways.
Temporary writ made permanent.
Draper Eichhorn, of Gary, Dan Blake, of counsel, for relator.
Anthony B. Roszkowski, pro se.
On January 12, 1953, we issued a temporary writ of prohibition prohibiting respondents from exercising further jurisdiction in a cause entitled City of Gary, Indiana, a municipal corporation, plaintiff, vs. Gary Railways, Inc., defendant, Cause No. 4-53-32, then pending in the Superior Court of Lake County, Room 4, and to show cause why a restraining order issued without notice January 10, 1953, should not be expunged from the records. Our writ directed to respondents ordered the judge to show cause, if any, on or before February 9, 1953, why said writ of prohibition should not be made permanent.
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. 1, 2. Joint County Park Board v. Verbarg (1950), 228 Ind. 280, 286, 91 N.E.2d 916. Respondents have filed no return, pursuant to Rule 2-36, showing cause why the writ of prohibition should not be made permanent. Therefore the writ of prohibition heretofore issued by this court is made permanent, and said court is ordered to expunge from its records the restraining order theretofore issued.
Draper, J., not participating.
NOTE. — Reported in 110 N.E.2d 746.