discussing a court's inherent power and noting that "[i]t cannot be doubted that, where it is established that the prosecuting attorney is an interested party . . . the court may appoint an attorney to represent the interests of the state"
How later courts described this case
- discussing a court's inherent power and noting that "[i]t cannot be doubted that, where it is established that the prosecuting attorney is an interested party . . . the court may appoint an attorney to represent the interests of the state"
Written by the judges who cited it.
The opinion
On Petition foe Rehearing.
Per CURIAM
—The temporary writ issued upon the filing of the petition herein was made returnable on July
*558
14,1938, at 10 o’clock a. m. The writ was directed to the respondents, Criminal Court of Marion County, Honorable Frank P. Baker, Judge, Harold K. Bachelder, Fae W. Patrick, and all other persons acting for, through, or under the order of the Criminal Court of Marion County. On July 8th, the Honorable Frank P. Baker filed a response on behalf of himself as sole judge of the Marion -Criminal Court, and upon behalf of that court. Upon the erroneous assumption that no other responses would be filed, an opinion was filed on July 13th. Thereafter, on July 14th, the respondents Bach-elder and Patrick filed a response. Thereafter all of the respondents filed a petition to set aside the decision and opinion, and for a hearing, and a brief in support thereof.
In the response of Bachelder and Patrick it is contended that this court had no jurisdiction to issue a writ of prohibition against the individual respondents, who are neither courts nor judges of courts. Their response otherwise does not differ substantially from the one that was filed. The response of Bachelder and Patrick has been considered in connection with the petition to set aside the decision and opinion, and for a hearing.
It is suggested in the original opinion that Bachelder and Patrick are not necessary parties. The statute (section 3-2201 Burns’ Ann. St. 1933, section 1090 Baldwin’s Ind. St. 1934) provides for the issuing of writs of prohibition against
courts.
It does not mention judges. Without being named in the writ, or being made parties to the proceeding, all judges or officers of courts, and all persons whomsoever, who have notice of the writ, are bound by writs of prohibition against courts, and are prohibited from acting upon authority of the prohibited court just as effectively as though they had been made parties to the action and the writ. It has been the uniform practice, however, to
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•make judges and other parties who might be expected to act upon the authority of the court, against whom the action is directed in respect to the subject-matter of the action, parties to the action and respondents in the writ. See
State ex rel.
v.
Superior Court of Marion County et al.
(1924), 195 Ind. 174 , 144 N. E. 747 , and
State ex rel. Meyer-Kiser Bank
v.
Superior Court of Marion County et al.
(1931), 202 Ind. 589 , 177 N. E. 322 . It was alleged in the writ that the respondents were threatening to act by virtue of an order of the Marion Criminal Court. If they had not been made parties to the petition or respondents in the temporary writ, they would have been bound by the writ upon notice. In the return they do not deny that they were claiming the right to act and threatening to act. They are proper parties to the proceeding.
The response reiterates the contentions made in the return of the Honorable Frank P. Baker and the court. All of the contentions have been reconsidered, and the petition is denied.