The opinion
Dissenting Opinion
DeBruler, J.
Zarko Sekerez, taxpayer and citizen of the Sanitary District of Gary, Indiana, opposing the construction of a new sewage treatment facility within that District, filed two suits before Judge Moody in the Lake Superior Court against the Board of Commissioners of the Sanitary District of Gary seeking to enjoin the project. These suits were dismissed in 1973, pursuant to applicable provisions of the Public Lawsuit Statute ( Ind. Code §§ 34-4-17-1 through 34-4-17-8, being Burns §§ 3-3301 through 3-3308) for failure to post a bond. Such dismissal order was affirmed by the Court of Appeals in a 1974 opinion appearing at 309 N.E.2d 460 .
In 1974, after the Board had adopted a series of additional declaratory and confirmatory resolutions which are not included in the record but which related to the construction of the same sewage treatment facility which had been the subject of the previous two suits, petitioner Sekerez filed a third suit against the same Board — this time in the Lake Circuit Court — seeking to enjoin the same project. On January 16, 1975, the Lake Circuit Court dismissed this suit on the ground that petitioner here, plaintiff there, had not remonstrated against the project before the Board and sought judicial review of the Board’s actions as required by Ind. Code § 19-2-14-9 , being Burns § 48-4207, Ind. Code § 19-2-14-10 , being Burns §48-4208, and Ind. Code § 34-4-17-8 (b), being Burns § 3-3308 (b). This ground is wholly different from the ground upon which that court had dismissed the first two suits.
Following the dismissal of the third suit, petitioner indicated that he would appeal the dismissal and institute addi *610 tional suits challenging the project. At this juncture, the Board countered with its own suit back in the Lake Superior Court before Judge Moody, seeking to enjoin petitioner from appealing the dismissal and from filing and prosecuting further suits against the same project. It is this Superior Court case which gives rise to this original action. Upon the heels of the Board’s Superior Court case, petitioner Sekerez responded by filing in the Lake Circuit Court yet a fourth suit seeking to enjoin the same project.
Moving with exceptional briskness in the Board’s Superior Court case, the trial judge overruled petitioner’s motion to dismiss and motion for change of venue, submitted the case for trial, and, on February 7, 1975, entered his special Findings of Fact and Conclusions of Law. Petitioner was permanently enjoined from prosecuting appeals from the decisions of the Lake Circuit Court in the third and fourth suits, the fourth suit having been dismissed by the Lake Circuit Court in the meantime. It is this final, permanent injunction granted by the Lake Superior Court which petitioner contends in this original action was made without jurisdiction, so that this Court should prohibit its enforcement.
The permanent injunction restrained petitioner from doing any of the following acts:
“1. Commencing any litigation against the plaintiffs herein which in any way involves the construction or erection of sanitary sewage facilities in the Sanitary District of Gary, Indiana, as more particularly defined in Gary Sanitary District Resolution Nos. 415, 418 and 424 adopted August 13, 1974, October 22, 1974, and December 27, 1974, respectively;
2. From commencing any litigation involving plaintiffs herein or any proposed buyer of bonds of the Sanitary District which in any way challenges or is designed to prevent the issuance or sale of sanitary district bonds proposed to be sold or sold to finance the aforementioned sanitary sewer facilities in the Sanitary District of Gary, Indiana;
3. From taking any action to appeal the order and judgment of the Lake Circuit Court, entered in that Court’s *611 Cause No. C74-2801 on January 16, 1975, dismissing that cause and the defendant’s complaint as plaintiff therein, or from taking any action to appeal the order and judgment entered or to be entered in the Lake Circuit Court, Cause No. C75-271.”
On February 26, 1975, we issued a temporary writ prohibiting the Lake Superior Court from exercising further jurisdiction in the case. Since that date, petitioner proceeded with his appeals from the dismissal of the third and fourth cases, and such appeals have been dismissed by the Court of Appeals for failure of petitioner to post a bond set by the Court of Appeals pursuant to the Public Lawsuit Statute.
The Lake Superior Court injunction has two prongs. In paragraphs (1) and (2), it restrains petitioner from instituting new litigation. And, in paragraph (3), it restrains petitioner from appealing the two Circuit Court dismissals. The entire injunction is a final judgment. If the judicial proceedings which culminated in this injunction were jurisdictionally defective, petitioner’s legal remedy by way of appeal is adequate, and such defects properly should be raised by appeal rather than by original action. The right of petitioner to appeal from the part of the order contained in paragraphs (1) and (2) is clearly adequate. However, the second prong of the injunction restrains petitioner from taking those procedural steps necessary to appeal from the Circuit Court dismissals. This prohibition is contrary to the Public Lawsuit Statute which specifically grants the right to appeal from such dismissals. Ind. Code § 34-4-17-5 , being Burns § 3-3305. Petitioner’s right to appeal could have been lost during his appeal of this injunction. Because petitioner’s appellate rights were greatly endangered we should consider in this original action whether paragraph (3) of the injunction should be permitted to stand, in spite of the fact that it is part of a final judgment and consequently would be reviewable by way of appeal.
*612 In Meridith v. Crowder, (1924) 81 Ind. App. 221 , 142 N.E. 876 , relying on prior Supreme Court cases, the Appellate Court held that, where a judicial proceeding is going forward and the parties have a right to appeal from a final decision made in that proceeding, another court sitting in equity may not enjoin the enforcement of a judicial order. The Court stated:
“[A] court will not, as a rule, enjoin another tribunal from acting in a matter over which it has jurisdiction, or where there is a right of appeal.” 81 Ind. App. at 224 .
We held in State ex rel. Miller et al. v. Superior Court of Madison County, No. 2 (1965) 246 Ind. 698 , 210 N.E.2d 662 , that one court may not infringe upon another court’s exercise of its normal jurisdiction and that jurisdictional conflicts between two courts are properly presented to this Court by way of an original action. That case makes it clear that a jurisdictional conflict occurs when the order of one court is nullified by an order of another. In State ex rel. American Reclamation and Refining Co. v. Marion Superior Court, Room 1, (1971) 256 Ind. 507 , 269 N.E.2d 869 , a jurisdictional conflict occurred between two courts of the same judicial level, when suits between the same parties and involving the same subject matter were pending at the same time in both courts.
While none of these cases treats the exact situation before us, they are applicable here. At the time the Board filed its suit for injunction in the Superior Court, the Circuit Court had dismissed petitioner’s third public lawsuit. The parties were the same in both courts. The Circuit Court case had followed its course and been litigated to a final disposition and judgment. As we understand the above cases, the Board could not have instituted in the Superior Court an action to enjoin the prosecution of the public lawsuit in the Circuit Court while it was defending that lawsuit in that court. Had it done so a conflict between courts of coordinate jurisdiction would have occurred. State ex rel. American Reclamation and Refining *613 Co. v. Marion Superior Court, Room 1, supra; City of Indianapolis v. John Clark, Inc., (1964) 245 Ind. 628 , 196 N.E.2d 896 ; State ex rel. City of Indianapolis v. Hancock Circuit Court, (1967) 249 Ind. 377 , 231 N.E.2d 32 . Such a conflict would be properly resolvable in an original action here. If the Superior Court could not exercise lawful authority in the injunction action while the Circuit Court was considering the public lawsuit, then, for like reason, and in like manner, it had no lawful authority to entertain the injunction action after the Circuit Court made its final judgment in the third public lawsuit.
As pointed out above in the narration of procedural steps, petitioner filed his fourth public lawsuit in the Circuit Court after the Board had filed its injunction suit in the Superior Court. This fourth suit created a second jurisdictional conflict between the two courts. The record shows that the Board ignored this conflict, went into Circuit Court and obtained an order setting bond, before the Superior Court issued the final injunction.
The Superior Court injunction under consideration in this original action was an obstruction of the right to appeal a Circuit Court judgment and to prosecute the fourth case. That obstruction was an interference with the Circuit Court and with appellate tribunals whose jurisdiction might yet have been timely invoked. I would hold that paragraph (3) of the injunction was made without lawful authority, and the temporary writ, insofar as it commands the Lake Superior Court to refrain from enforcing said paragraph (3), should be made permanent. The temporary writ should be dissolved insofar as it commands the Lake Superior Court to refrain from exercising further jurisdiction and from entering further orders in relation to paragraphs (1) and (2).
Givan, C.J., concurs.
Note. — Reported at 335 N.E.2d 199 .