Opinion
No. 30,063.
Filed June 15, 1961.
APPEAL — Mandamus and Prohibition — Appointment of Receiver — Moot Question. — Where temporary writ of mandate and prohibition issued by Supreme Court provided that nothing therein should be construed to prevent appointment of receiver after proper notice and hearing and thereafter a special judge vacated prior appointment of receiver without notice, appointed a receiver after due notice, the instant cause to prohibit further exercise of jurisdiction in the appointment of a receiver without notice has become moot, does not involve a question of great public interest, and will not be decided.
Original action by State of Indiana on the relation of Continental Fiberglass Corporation, relator, seeking a writ of mandate and prohibition against respondents, Allen Superior Court No. 3, Lloyd S. Hartzler, Judge thereof. A temporary writ was issued.
Temporary writ dissolved and permanent writ denied.
Winslow Van Horne, of Auburn, for relator.
C. Severin Buschmann, Donald A. Schabel, Buschmann, Carr Schabel, of counsel, of Indianapolis and Newkirk, Keane Kowalczyk, of counsel, of Fort Wayne, for respondents.
Relator has filed in this Court petition for writ of mandate and prohibition praying in substance that respondent court be commanded to refrain from proceeding further or exercising jurisdiction in the appointment of a receiver without notice in the cause of Archer-Daniels-Midland Company, v. Continental Fiberglass Corporation, being Cause No. 6099 pending in respondent court. We issued the temporary writ on February 14, 1961, as above prayed for with the proviso that nothing in said temporary writ should be construed to prevent the appointment of a receiver in said cause after proper notice and hearing by the trial court, and further ordered that respondent show cause on or before March 15, 1961, why said writ should not be made permanent.
Respondent has filed return to the writ showing that subsequent to the issuance of said writ that relator herein has taken a change of venue from the judge in Cause No. 6099 in respondent court and that the special judge therein appointed on March 13, 1961, after the giving of due and sufficient notice appointed a receiver in said cause and vacated the appointment of the receiver which had been previously made without notice, and respondent asserts that the issues presented in the instant cause in this Court are therefore moot.
We are compelled to conclude that the issues in this cause are now moot, and as we do not determine solely moot or hypothetical questions unless some great public interest is involved which is not the case here, we have no alternative but to dissolve the temporary writ and deny the permanent writ.
State of Indiana on the Relation of Paul E. Tegarden v. Criminal Court of Marion County et al. (1961), 242 Ind. 116, 175 N.E.2d 26; State ex rel. N.Y.C.R.R. Co. v. Cir. Ct. Mar. Co. (1958), 237 Ind. 553, 555, 147 N.E.2d 554, 555; State ex rel. Mid West Ins. Co. v. Niblack, J., etc. (1956), 235 Ind. 616, 618, 137 N.E.2d 34, 36.
Temporary writ dissolved and permanent writ denied.
Jackson, Achor, Arterburn, Bobbitt, JJ., concur.
NOTE. — Reported in 175 N.E.2d 417.