
    State of Indiana ex rel. Jordan, Administratrix, etc. v. Probate Court of Marion County, White, Judge.
    [No. 29,056.
    Filed October 15, 1953.
    Rehearing denied December 3, 1953.]
    
      
      Norman J. Beatty and Frank E. Spencer, both of Indianapolis, for petitioners.
    
      Dan White, pro se,- and Vance M. Waggoner, of Rush-ville, for respondents.
   Flanagan, J.

This action was brought in this court seeking a writ of prohibition against the Probate Court of Marion County and the Judge thereof.

The applicable facts are these: On June 18, 1938, final report was approved in the involved estate. On February 10, 1939, a petition was filed seeking to reopen that estate. On March 8, 1939, an answer to the petition was filed. On September 26, 1939, a hearing was held on the issues joined by the petition and answer. After evidence had been adduced, the defendant filed a motion to dismiss the petition. This motion to dismiss was sustained.

Thereafter, on September 29, 1939, an amended petition was filed. No further action was taken until September 5, 1951, when a second paragraph of complaint was filed. On November 7, 1951, the defendant filed a motion to dismiss this second paragraph of complaint on the grounds that the sustaining of the motion to dismiss on September 26, 1939, amounted to a final judgment from which no appeal was taken, and therefore the jurisdiction of the court ended. The motion of November 7, 1951, was overruled, and the Probate Court of Marion County continues to act.

The vital question before us is whether the ruling on the motion to dismiss entered September 26, 1939, amounted to a final judgment. We hold that it did. The basis of that motion was that the Probate Court of Marion County was without jurisdiction at that time. The court held that it was without jurisdiction. That was in the nature of final judgment in the proceeding. No appeal was taken. Therefore the matter ended.

The temporary writ of prohibition is made permanent.

Gilkison, J., not participating.

Note. — Reported in 114 N. E. 2d 770.  