In re Removal of Paskins

57 N.E. 911, 155 Ind. 173, 1900 Ind. LEXIS 118

• Court: Indiana Supreme Court
• Decided: June 26, 1900
• Docket: No. 19,353
• Status: Published

Opinion

Baker, C. J.

— This proceeding was begun in the Johnson Circuit Court on April 24, 1899, under §35 of an act approved March 8, 1897, entitled “An act providing for the impeachment and removal from office of public officers”, Acts 1897 p. 278. On change of venue to the Marion Circuit Court, a demurrer for want of facts was sustained to the “accusation”, and this appeal resulted. Paskins moves to dismiss the appeal on the ground, among others, that the assignment of errors is insufficient to present any question to this court. The “accusation” was filed, presented to the court, and prosecuted, not by the prosecuting attorney in the name and on behalf of the State, but by citizens Lang and McEadden through their attorneys Miller & Barnett. To the ruling on the demurrer “the State of Indiana and the petitioners Lang and McEadden” severally excepted. The State of Indiana, by the Attorney-General, and Lang and McEadden, by their attorneys, have jointly assigned error on the ruling and judgment on the demurrer. In Rowe v. Bateman, 153 Ind. 633, it was held that an “accusation” under §35 may be verified by the oath of any person, but must be presented to the court and prosecuted by the prosecuting attorney (unless he be the accused) in the name and on behalf of the State, that the State is the party adverse to the accused, and that the person who verifies the “accusation” is not a party to the proceeding. As the alleged error is not available to Lang or to McPadden, and as the State complains of no wrong except jointly with them, the assignment presents no question. Armstrong v. Dunn, 143 Ind. 433 and cases cited on page 437; Earhart v. Farmers Creamery, 148 Ind. 79: Hatfield v. Cummings, 152 Ind. 280.

Appeal dismissed.