
    American Aggregates Corporation v. Superior Court of Marion County, Room 2, et al.
    [No. 26,426.
    Filed February 20, 1935.]
    
      Clinton H. Givan and Julius C. Travis, for petitioner.
    
      Carey & Cox, for respondents.
   Tremain, J.

This is an original action in this court for a writ of prohibition asking that the respondents be restrained and enjoined from taking any official action in a certain cause, entitled Otto E. Wente, plaintiff, v. American Aggregates Corporation and Central Indemnity Company, defendants, in cause A-66522, filed and begun in Superior Court of Marion county, Room 2, April 4, 1932, of which court the respondent, Joseph R. Williams, was judge. The other respondents were clerk and sheriff, respectively, of said court.

It appears from the petition that the American Aggregates Corporation filed an action against Otto E. Wente in superior court of Marion county, Room 1, December 3, 1930, in replevin, to recover from said Wente six motor trucks; that the plaintiff gave a replevin bond and took possession of said trucks; that a trial was had and judgment rendered to the effect that the plaintiff was entitled to the possession of four of said trucks and that it should return to the defendant, Wente, two of the trucks or pay to him $6,000.00. The plaintiff in that action, not being satisfied with its judgment, filed motion for new trial which was overruled, and it perfected a vacation appeal to the Appellate Court. While said action was pending in the Appellate Court on appeal, the appellee therein, Otto E. Wente, filed an action against the American Aggregates Corporation, and its bondsmen, Century Indemnity Company, in the superior court, No. 2, in Marion county, upon the original replevin bond. Such proceedings were had that a judgment was rendered therein in favor of said Wente, upon said replevin bond, in the sum of $6,540.00. The American Aggregates Corporation being dissatisfied with said judgment undertook to perfect a term time appeal to the Appellate Court of Indiana, and the same was designated in that court as cause No. 15024. While said appeal was pending the appellee moved to dismiss the same for the reason that the appellant had failed to perfect a term time appeal, which motion was sustained and the appeal dismissed in an opinion written by Kime, C. J., 97 Ind. App. 596, 187 N. E. 677, on November 24, 1933.

The original action herein was filed February 21, 1934. The petition recites in detail the various steps taken in Superior Court, Room 2, including pleadings filed and the ruling of the court thereon, as well as the appeal to the Appellate Court and the dismissal thereof.

The record shows that the action appealed by the American Aggregates Corporation v. Wente to the Appellate Court, cause No. 14610, was affirmed by that court June 1,1934,100 Ind. App. 59,190 N. E. 522; that a petition for rehearing was denied, and thereupon, a petition to transfer to this court was filed and has been denied.

The prayer, in the petition now before the court, is that this court issue a writ of prohibition to the Superior Court of Marion county, Room 2, restraining it from permitting sale by the sheriff of the property of the petitioner and prohibiting any other levy upon its property and that all proceedings be stayed. Upon the filing of said original action and upon, to wit: February 23, 1934, this court issued a writ of prohibition and restraining order restraining said Superior Court, Room 2, and its officers from taking any further action in said matter.

It is clear that the appellant’s remedy was by appeal which it undertook to perfect. That it failed is not the fault of the court. Under existing circumstances it is evident that this court has no jurisdiction in the matter.

Therefore, it is ordered that the temporary writ and temporary restraining order issued herein be, and the same are hereby dissolved and the petition is denied.  