State Ex Rel. Wolfal Etc. v. Rush Cc

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234 Ind. 650 (1955)

130 N.E.2d 460

STATE OF INDIANA ON THE RELATION OF WOLFAL ETC. v. RUSH CIRCUIT COURT, BARGER, SPECIAL JUDGE.

No. 29,347.

Supreme Court of Indiana.

Filed December 15, 1955.

Vance M. Waggoner, of Rushville, for relator.

ARTERBURN, J.

This is an original action asking for a writ of prohibition out of this court. A temporary writ was issued upon a prima facie showing on October 27, 1955. The petition herein states that the respondent, Special Judge, is attempting to exercise jurisdiction to hear petition (filed after term) to modify and reopen a judgment approving a final report in a drainage matter.

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 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 *651 and duties of adverse counsel, and search the record for reasons why the relief sought should not be granted. State ex rel. Toll Rd. Comm. v. St. Joseph S.Ct. etc. (1954), 233 Ind. 47, 116 N.E.2d 514; Walls et al. v. State ex rel. Mallott, Auditor of Lawrence Co. et al. (1895), 140 Ind. 16, 38 N.E. 177.

Upon the prima facie showing originally made, and for the reason the issuance of the permanent writ is unopposed, the writ is made permanent.

Bobbitt, C.J., Achor and Landis, JJ., concur.

Emmert, J., not participating.

NOTE. Reported in 130 N.E.2d 460.